May 17, l995
To: Roy JD. Hall, Jr., Chairman
Standing Committee on Bar Admissions
Pago Pago American Samoa 96799
From: F. Michael Kruse, Chief Justice
Copy: Janet. L Skeels
John D. Huff
William H. Reardon
Standing Committee Members
Marshall Ashley, President A.S.B.A.
Ref: Bar Association Membership Residency Requirement
In re the application of Janette L. Skeels
In re the application of John D. Huff
This is to clarify the High Court Rule requiring applicants for admission to the American Samoa Bar Association to be residents of the territory.
Your committee has submitted, for my consideration, a split decision on the bar applications of Janet L. Skeels and John D. Huff ("applicants") Both applicants are currently active bar members and residents of the State of Ca1ifornia. They have applied for admission to the American Samoa Bar Association since their working relationship with the Law Offices of William H. Reardon will he bringing them to American Samoa periodically to practice law.
Bar Admissions Committee member Charles V. Ala'ilima dissented to the applicants' admission on the grounds that the Rules of Admission regarding residency requirements should be rewritten to clarify the High Court Rule promulgated by Acting Chief Justice Thomas Murphy dated November 13, 1981. This Rule clearly requires that an individual must be a resident of American Samoa in order to qualify for admission to the bar.
The applicants urge that such a Rule violates the privileges and immunities clause of the United States Constitution, which provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. Art. 4, Sec. 2, cl. 1. Applicants cite Thorston v. Virgin Islands Bar Association, 489 U.S. 546, (1989), for the claim that the practice of law is a privilege protected by the privileges and immunities clause of the U.S. Constitution and that a nonresident of a territory who otherwise qualifies for bar admission has an interest protected by the clause.
In Thorston, The Supreme Court found that a Virgin Islands Bar Association Rule requiring an applicant to be a resident in the territory for one year before applying for bar admission was unconstitutional under the privileges and immunities clause. Id. at 559. Although the privileges and immunities clause uses the term "citizens of each State," and not territories, the Court held that it applied to the Virgin Islands Pursuant to 42 U.S.C. Sec. 1561. Id. (emphasis added). In passing 45 U.S.C. Sec. 1561, the U.S. Congress expressly stated that the privileges and immunities clause of the U.S. Constitution "hereby extend[s] to the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States."
Neither the U.S. Congress nor the Legislature of American Samoa have ever passed a law, such as 49 U.S.C. Sec. 1561, that would allow extend the application of the privileges and immunities clause of the U.S. Constitution to American Samoa. Without such a mandate, the privileges and immunities clause does not apply to a territory. Anderson v. Scholes, 83 F.Supp. 681, SSY (I) (Alaska 1949) (court held that the term "citizens" used in the privileges and immunities clause has the same meaning as in the fourteenth amendment, which does not apply to the territories of the United States). American Samoans are recognized as "nationals" and not citizens of the United States. In dicta, the High Court of American Samoa has also stated that the privileges and immunities clause of the U.S. Constitution "applies to the States on its face" and not to American Samoa. Banks v. ASG, 4 A.S.R.2d 113, 128, f. 7 (Trial Div. 1987).
For these reasons, I am denying the admission of Janette L. Skeels arid John D Huff to the Bar Association of American Samoa due to their failure to satisfy the High Court Rule requiring applicants to the Bar to be residents of American Samoa. At this time, I see no compelling reason to amend this requirement. Since the privileges and immunities clause does not apply to American Samoa, it offers no protection to the applicants. Furthermore, HCR 145, which provides for Pro Hac Vice admission, has been liberally applied to off-island counsel, including practitioners from neighboring Western Samoa. If either applicant has a matter pending with the High Court, they may request the Chief Justice to grant them Pro Hac Vice status.
By copy of this letter to the President of American Samoa Bar Association, I am inviting comment from the Bar as to the desirability of a continuing residency requirement for admission to Bar membership and practice before the High Court. Some counsel, including yourself, have variously expressed the need revisit the rule's residency premise especially in those cases where off-island counsel intend to associate with local law offices. There is merit to this view, since the court can then look to the local office to secure compliance with counsel's responsibilities to the court and American Samoa public. As the High Court recently stated in American Samoa Government v. Wilson, CR No. 08-93, (Trial Div. 1993) , slip op. at 2 (Order on Motion to Withdraw, issued Mar. 31, 1990) , "[in] reaping the benefits as a legal profession, an attorney accepts his office cum onere," Among my concerns, are desire to ensure that the onus of the profession in a very small and very isolated Bar is fairly shouldered by all who seek admission and the benefits of practice in the territory.
HIGH COURT RULES (HCR)
TABLE OF CONTENTS
VII.RULES OF CONDUCT
Rule 2.Effective Date
Rule 3.Application & Scope
Rule 4.Penalties for Noncompliance
Rule 11.Business Hours
Rule 12.Courts Always Open
Rule 13.Terms of Court
Rule 14.Distribution of Judicial Duties
Rule 15.Priority Matters
Rule 16.Court Reporters
Rule 21.Filing of Papers
Rule 22.Custody of Files
Rule 25.Clerk's Authority to Execute Papers
Rule 31.Fees for Service
Rule 32.Advance Deposit
Rule 33.Fees Payable in Clerk's Office
Rule 34.Certificate of Service
Rule 35.Return on Marshal's Attachment
Rule 36.Return on Marshal's Sale
Rule 41. Use
Rule 42.The Library Hours
Rule 43.Withdrawal of Books
Rule 52.Format of First Page
Rule 53.Changes on Face of Paper
Rule 54.Conformance of Copies
Rule 55.Separate Claims for Relief
Rule 56.Case Numbers
Rule 102.Courtroom Conduct
Rule 103.Judge's Conduct
Rule 104.Attorney's and Legal Practitioner's Conduct
Rule 106.Photographs, Broadcasts and Tape Recording Prohibited
Rule 112.Types of Contempt
Rule 113.Direct Contempt
Rule 114.Constructive Contempt
Rule 115.Issuance of Order to Show Cause
Rule 116.Response of the Accused
Rule 120.Effect of Other Laws
Rule 133.Bar Admissions Committee
Rule 135.Moral Character
Rule 136.Investigation of Moral Character
Rule 139.Oath of Admission
Rule 140.Integrated Bar
Rule 141.Professional Association
Rule 142.Professional Corporation
Rule 143.Legal Practitioners
Rule 144.Licenses Previously Issued
Rule 145.Counsel Pro Hac Vice
Rule 146.Officials Prohibited from Practicing
Rule 152.Definitions and Jurisdiction
Rule 154.Rules of Civil Procedure
Rule 155.Grounds for Discipline
Rule 156.Confidentiality of Records
Rule 157.Public Hearing
Rule 159.Duty of Complainant
Rule 160.Unwillingness of Complaint to Proceed
Rule 161.Informal Hearing
Rule 162.Formal Proceedings
Rule 163.Composition of Hearing Panel
Rule 164.Appointment of Disciplinary Counsel
Rule 165.Duties of Disciplinary Counsel
Rule 167.Notice of Hearing
Rule 169.Time Period for Discovery
Rule 171.Holding Formal Proceeding in Abeyance
Rule 172.Rules of Evidence
Rule 173.Standard of Proof
Rule 174.Termination by Stipulation as to Facts and Discipline
Rule 175.Forms of Discipline
Rule 177.Motion to Reconsider
Rule 178.Appeal to the Chief Justice
Rule 179.Effective Date of Discipline
Rule 180.Notice of Public Discipline
Rule 182.Incapacity of Attorney of Practitioner
A. HIGH COURT RULES (HCR)
I. GENERAL PROVISIONS
RULE 2. EFFECTIVE DATE. Except as otherwise provided herein, these rules are effective October, 1 1981, and are promulgated for the due administration of justice in American Samoa. These rules shall govern all actions and proceedings pending on or commenced after that date. These rules supersede all previous rules of the High Court.
RULE 3. APPLICATION & SCOPE. These rules apply to the High Court, District Court and the Village Courts. They supplement the applicable provisions of the American Samoa Code Annotated and are to be construed so as to be consistent with the Code and to promote the just, efficient and economical administration and determination of every action and proceeding.
RULE 4.PENALTIES FOR NONCOMPLIANCE.Failure of court personnel, counsel or of a party to comply with any provision of these rules is a ground for imposition by the Court of such sanctions authorized by statute of rule as may be appropriate.
II. ADMINISTRATIVE PROVISIONS.
(a) All criminal proceedings in the District Court involving felonies and serious misdemeanors and all proceedings in the High Court must be taken down in shorthand by a court reporter or recorded electronically. If any other proceeding is to be reported, a written request for such reporting must filed with the Clerk of Court before commencement of the proceeding and the presiding judge shall rule upon the request.
(b) Court reporters, when assigned to report a case, must take down in shorthand all the opening statements, testimony, the objections made, the rulings of the Court, voir dire, jury instructions, and arguments of counsel. If directed by the judge at the request of either party, court reporters must, within such reasonable time after the trial of such case as the Court may designate, write out the same, or such specific portions thereof as may be requested, by typewriter or other printing machine, and certify to the same as being correctly reported and transcribed and, when directed by the Court, file the same with Clerk of Courts.
(a) The word "Court" shall refer to the High Court, District Court and Village Courts.
(b) The word "judge" shall refer to the Chief Justice, Associate Justices, District Court Judges and Permanent and Temporary Associate Judges.
(c) The word "Staff" shall refer to all court personnel other than judges.
(d) The word "Clerk" shall refer to the Clerk of Courts.
(e) The word "he" shall include "she."
III. CLERK'S OFFICE
RULE 22.CUSTODY OF FILES. All files of the Court shall remain in the custody of the Clerk and no record or paper belonging to the files of the Court shall be taken from the custody of the Clerk without a special order of a judge and a proper receipt signed by the person obtaining the record or paper. However, the files of the Court, except where the Court has ordered a file sealed, are matters of public record and may be examined in the Courthouse.
RULE 23.DOCKET. The Clerk of Court must keep a docket and enter therein each case and its file number. All papers filed with the Clerk and all process, orders minutes and judgments shall be entered chronologically in the docket on the folio assigned to the case. Docket eateries should be brief but must show the date the entry is made. The date of the entry of the order or judgment for all purposes is the filing date of any papers or the date of the pronouncement from the bench.
RULE 24.EXHIBITS Every exhibit introduced in evidence and all depositions and transcripts shall be held in the custody of the Clerk. Unless reason exists for retaining originals, the judge may, upon applications, order them returned to the party to whom they belong.
RULE 25.CLERK'S AUTHORITY TO EXECUTE PAPERS. The Clerk is authorized to sign and enter only those orders specifically allowed to be signed by the Clerk by statute or by any Rules of Court without further direction of a judge.
FILING FEES. The following fees are payable to the Clerk of the Courts upon the filing of:
(a)a civil action in the High Court . . . . . . . . . . . $100.00;
(b)an appellate action. . . . . . . . . . . . . . . . . . . . . $100.00;
(c)a foreign judgment action . . . . . . . . . . . . . . . $ 25.00;
(d)a domestic relations action . . . . . . . . . . . . . . $100.00;
(e)a relinquishment/termination petition . . . . . . $ 25.00;
(f)an adoption petition . . . . . . . . . . . . . . . . . . . .$ 25.00;
(g)a probate action . . . . . . . . . . . . . . . . . . . . . . . $ 50.00;
(h)a small claims action . . . . . . . . . . . . . . . . . . . $ 5.00;
(I)a land or matai action . . . . . . . . . . . . . . . . . . .$100.00;
(j)a civil action in the District Court . . . . . . . . . $ 50.00;
(a)copying fees (per page) . . . . . . . . . . . . . . . . . $ .50;
(b)certification fees . . . . . . . . . . . . . . . . . . . . . . .$ 1.00;
(c) search for records fee . . . . . . . . . . . . . . . . . . .$ 1.00;
(d)admission pro hac vice (TCR 145 application)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 10.00;
Effective January 1, 1996
IV. MARSHAL'S OFFICE.
RULE 31.FEES FOR MARSHAL'S SERVICES. The following fee schedule for services of the Marshal shall be collected and fixed as costs:
(a)for serving, within the island of Tutuila, a summons or any other writ, order, or process in any case or proceeding (per person or party) . . . .$ 15.00;
(b)for serving, within the island of Tutuila, a subpoena or summons for a witness or appraiser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15.00;
(c)for preparing any public notice or bill of sale
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15.00;
(d)for executing a warrant for arrest of any vessel
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 50.00;
(e)for serving within the island of Tutuila, a small claims complaint, summons, and notice of hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 5.00:
Effective January 1, 1996.
RULE 33.FEES PAYABLE IN CLERK'S OFFICE. For those who wish to have the Marshal's Office serve process, all fees and advance deposits are payable to the Clerk's Office at the time of the request for service. In the event that there is any expense greater than the advance deposit, the Marshal's Office may require additional advances from the attorney or the litigant.
RULE 34.CERTIFICATION OF SERVICE. Where the Marshal is the serving officer, a certificate of service shall be prepared by the Clerk and submitted by the Clerk to the Marshal for execution and service.
RULE 35.RETURN ON MARSHAL'S ATTACHMENT Upon the Marshal's attachment of property pursuant to a court order, the Marshal must within 10 days unless extended by the Court file a return including an inventory of the property attached.
RULE 36.RETURN ON MARSHAL'S SALE. Upon the Marshal's sale of property levied upon, the Marshal shall within a reasonable time file a return including an inventory of the property sold and all bids made upon such property.
V. LAW LIBRARY.
RULE 42.THE LIBRARY HOURS. The library hours shall be from 7:30 a.m. to 4:00 p.m. every working day. When the need is clearly manifested, special arrangements may be made with the Law Librarian or the Marshal for the use of the law library during non-business hours.
RULE 43.WITHDRAWAL OF BOOKS. No book will be withdrawn from the law library except under special circumstances. The decision to allow withdrawals of books from the library shall be made by the Law Librarian or the Chief Justice.
RULE 44.PENALTIES. Damaging or defacing any book or reference in the law library, removing any book from the library without permission, or failing to return a book on the due date may result in deprivation of the privilege or using the library, liability for loss or damage, or such other disciplinary action as may be imposed by the Chief Justice.
VI. PAPERS & PLEADINGS.
RULE 51.FORM. All papers presented for filing shall be on white opaque paper of good quality with numbered lines, 8 ½" by 11" in size, and shall be flat, unfolded (except where necessary for the presentation of exhibits), without back or cover, and shall comply with all other applicable provisions of these rules. A transition period concerning the size requirement of papers shall be in effect until April 1, 1982. All papers shall be typewritten, or printed, or be prepared by a photocopying or other duplication process that will produce clear and permanent copies equally legible to printing, in type not smaller than pica size. No script or italic typewritten material is acceptable. Only one side of the paper shall be used, and all papers except for the identification of counsel, title of the case, footnotes, and quotations, shall be double spaced and numbered at the bottom. All papers shall consist entirely of original pages without riders, and shall be firmly bound together at the top. Exhibits may be fastened to pages of the specified size and, when prepared by a machine copying process, shall be equal to typewritten material in legibility and permanency of image.
(a) the space commencing with line 1, to the left of the center of the page, the name, office address, or if none, the residence address, and telephone number of the attorney for the party in whose behalf the paper is presented, or of the party if he is appearing in person, and the specific identification of each party represented by name and interest in the litigation (i.e., plaintiff, defendant, etc.);
(b)the space between lines 1 and 7 to the right of center of the page shall be left blank for the use of the Clerk;
(c) on or below line 8, the title of the Court:
"IN THE DISTRICT COURT OF AMERICAN SAMOA" or "IN THE HIGH COURT OF AMERICAN SAMOA."; below the High Court title, the appropriate division of the Court shall be designated;
(d) below the title of the court, in the space to the left of the center of the page, the title of the action in the initial pleading; the title of the action must contain the names of all of the parties, but thereafter may be appropriately abbreviated;
(e) to the right of and opposite the title, the class of case (C.A., P.R., D.R., CR.D, CR.H., LT., M.T., etc.) and the number of the action, if known; and
(f) immediately below the number of the action the nature of the paper; in a case having multiple parties any answer, response or opposition shall specifically identify the complaining, propounding or moving party and the complaint, motion, or other matter being answered or opposed.
RULE 56.CASE NUMBERS. The Clerk shall, upon filing the first pleading in any case, assign a case number and endorse that number upon the pleading. The case number must appear on every subsequent paper or pleading presented for filing.
VII. RULES OF CONDUCT
(a) All attorneys and court personnel whose duties are in the courtroom shall be neatly groomed. Except as hereinafter provided, legal counsel must wear a shirt, tie and long pants or, in lieu thereof, a shirt, tie and lavalava. On Fridays (Samoan Day), male counsel may wear an ula in lieu of a tie. Female counsel must wear dresses, pantsuits or skirts and blouses.
(b) Attorneys, during jury trial, shall not exhibit undue familiarity with the judge, opposing attorneys, jurors, witnesses or court officials.
(c) While Court is in session, no person shall be permitted within the bar of the Court other than members of the bar, litigants, court personnel and witnesses called to the stand, except by leave of the Court. This includes member of litigants' families.
(d)Lawyers shall rise and remain standing while addressing the Court or a jury, unless excused by the Court.
(e) Lawyers may never lean upon the bench nor appear to engage the Court in a confidential manner, except upon invitation.
(f) The Defendant shall stand during arraignment or entering plea and at the time of sentencing.
(g)Except when Court business is to be conducted and counsel for the respective parties are present, counsel shall not congregate in the judge's chambers.
(h)Persons in the courtroom without the bar shall not disturb the order of the Court.
RULE 103.JUDGE'S CONDUCT. The conduct of all judges shall be governed by the Canons of Judicial Ethics. Violations of the Canons shall result in an appropriate disciplinary action.
RULE 104.ATTORNEY'S AND LEGAL PRACTITIONER'S CONDUCT. The conduct of attorneys and legal practitioners shall be governed by the American Bar Association Model Rules of Professional Conduct. Violations of the Model Rules shall result in an appropriate disciplinary action.
Effective May 17, 1993
RULE 105. PUBLICITY.Court personnel, including, among others, marshals, clerks and deputies, law clerks, messengers, court interpreters, and court reporters, shall not disclose to any person information relating to any pending criminal, civil or bankruptcy proceeding that is not part of the public records of the court without specific authorization of the court, nor shall any such personnel discuss the merits or personalities involved in any such proceeding with any member of the public.
All forms, means and manner of taking photographs, tape recording, broadcasting, or televising are prohibited in the Courthouse during the course of , or in connection with, any judicial proceedings whether the court is actually in session or not unless the presiding judge in his discretion permits otherwise. This rule shall not prohibit recordings by a court reporter provided, however, no court reporter or any other person shall use or permit to be used any part of any recording of a court proceeding on, or in connection with, any radio or television broadcast of any kind. The Court may permit photographs of exhibits to be taken by or under the direction of counsel.
VIII. CONTEMPT RULES.
RULE 113.DIRECT CONTEMPT. An act of direct contempt is misbehavior of any person, including legal counsel, in the presence of the Court or so near thereto that the misbehavior obstructs the administration of justice. Direct contempt may be summarily punished by the Court. An order must be filed by the court reciting the facts, adjudging the person guilty and prescribing the punishment. A direct contempt order is valid only if it recites facts with sufficient particularity to demonstrate on its face that the alleged contemnor's conduct constituted an act of contempt.
RULE 114.CONSTRUCTIVE CONTEMPT. An act of constructive contempt is one which arises from matters not occurring in or near the presence of the Court but which tends to obstruct or defeat the administration of justice. For indirect contempt, an affidavit stating the facts constituting the contempt and an Order to Show Cause re Contempt must be filed with the Court and a hearing must be held as provided for below.
RULE 115.ISSUANCE OF ORDER TO SHOW CAUSE. If the judge is satisfied with the affidavit presented to him for bringing a constructive contempt proceeding, he signs the Order to Show Cause re Contempt. The Clerk of Court calendars a hearing and puts the date of the hearing on the Order to Show Cause. Copies of both the affidavit and the Order to Show Cause must be served personally on the alleged contemnor.
RULE 117.HEARING. To prove the allegations of the affidavit, witnesses and parties may be called to testify at the hearing and other competent evidence may be introduced. The alleged contemnor may be represented by counsel and may call witnesses and present evidence in his own behalf.
RULE 118.PUNISHMENT. It is within the sound discretion of the Court to impose a penalty, either fine or imprisonment, for contempt reasonably commensurate with the gravity of the offense. If there is an express finding that the accused has the present ability to perform an act ordered, that the punishment may be imprisonment until the act has been performed.
However, the commitment of such a contemnor must be reviewed periodically and if the Court finds that the contemnor no longer has the ability to comply then the contemnor must be released.
At the discretion of the Court, if there is a finding of contempt, monetary sanctions may be awarded for the costs, including reasonable attorney fees, of bringing the proceeding.
IX. RULES OF ADMISSION.
RULE 133.BAR ADMISSIONS COMMITTEE. The Chief Justice shall create a Standing Committee on Admissions to investigate and determine the qualifications of applicants and to make recommendations to the Chief Justice concerning the admission of applicants.
RULE 134.APPLICATION. Any person seeking admission to the practice of law in American Samoa must file with the Clerk of Courts a formal application in a form furnished by the Clerk, which must be made under oath and must contain such information relating to the applicant's age, social security number, residences, addresses, citizenship, occupations, general education, Legal education, and moral character. Each application must be accompanied by a $50.00 filing fee payable to the American Samoa Bar Association.
Effective April 7, 1983.
RULE 135.MORAL CHARACTER. Every applicant must be of good moral character. The term "good moral character" includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, observance of the laws of American Samoa and the United States, and respect for the rights of others and for the judicial process.
RULE 136.INVESTIGATION OF MORAL CHARACTER. The Standing Committee may require the applicant to submit letters of character reference, or may require any other investigation deemed appropriate, including consideration of a report from the National Conference of Bar Examiners. The applicant bears the expense of any investigation up to the amount of $125.
RULE 137.EDUCATION. The applicant must demonstrate the necessary qualifications of learning and ability by proof of having been admitted to practice law before the highest court of record of a State or Territory of the United States or of a foreign country where the English common law forms substantially the basis of that country's jurisprudence, and where English is the language of instruction and practice in the courts of that jurisdiction; provided that such prior Bar admission was premised upon proof of graduation from an accredited law school and successful completion of a bar examination or of equivalent indicia of learning and ability.
Effective August 29, 1989
RULE 138.RECIPROCITY. The fact that an applicant has practiced for a period of 2 years or more before the highest court of record in a State, Territory of the United States, or of a foreign country where the English common law forms substantially the basis of that country's jurisprudence, where English is the language of instruction and practice in the courts of that jurisdiction, and which State, Territory, or country extends reciprocity to American Samoa is prima facie evidence of the applicant's fitness to practice law in American Samoa and to be admitted to the Bar on reciprocity, reserving to the Standing Committee the power to review such circumstances as might be necessary.
RULE 139.OATH OF ADMISSION. Upon meeting the requisite qualifications for admission, an applicant is admitted to the Bar by taking an oath to support the Constitution of the United States of America and the Revised Constitution of American Samoa and by taking the oath of office as an Attorney and Counselor of law.
RULE 140.INTEGRATED BAR. The Bar is integrated in that every person who has been admitted to practice law must maintain membership in the Bar Association. Only a member of the Bar Association may practice law in American Samoa.
RULE 142.PROFESSIONAL CORPORATIONS. A corporation organized under the laws of American Samoa by attorneys desiring to practice law within such corporation, must file an application with Standing Committee. In addition:
(a) For a corporation to be licensed as a professional legal corporation, each shareholder, director, and officer of the corporation must be licensed to practice law in American Samoa. Each employee of the corporation who will practice law in American Samoa must be licensed to practice law in American Samoa.
(b) The shares of a corporation owned by a person who dies or becomes disqualified to practice law must be acquired by the corporation, by its remaining shareholders, or by one or more persons licensed to practice law within 90 days of the person's death or disqualification.
(c) The corporation may not limit the professional liability of any person licensed to practice law.
(d) The requirements of sections (a), (b), and (c) of this rule must be set forth in the corporation's articles of incorporation, by-laws, and share certificates.
(e) The corporate name of every such corporation must include the name of the shareholder and if there is more than one shareholder, either the names of all or the name of one or more and the words "& Associates", followed by the words: "A Professional Corporation."
(f) Nothing in this rule affects or impairs the disciplinary powers of the Court over any person licensed to practice law in American Samoa.
(a) Only those legal practitioners currently members of the American Samoa Bar Association are permitted to practice law. No new legal practitioners will be admitted to the Bar in the future.
(b) No legal practitioner may form a professional association or a professional corporation.
(c) No legal practitioner may be associated with an attorney. However, an attorney may use the services of a legal practitioner on a case by case basis.
(d) Legal practitioners may not advertise as "legal counsel", "counselor", "Law office of " or otherwise infer in any advertisement that he or she is an attorney.
(e) Legal practitioners may use the letters "L.P." after their names for the purpose of denoting his or her profession.
(f) Legal practitioners are authorized to practice only in the Land Titles Division of the High Court, in adoption matters in the District Court, and in all matters in the Village Courts.
(g) Legal practitioners are permitted to practice in the Appellate Division of the High Court in those Appeals originating in the Land and Titles Division of the Court.
Effective February 11, 1983
RULE 145.COUNSEL PRO HAC VICE. A person who is not a member of the American Samoa Bar but who is a member in good standing of and eligible to practice before the highest court of record in any State, Territory of the United States or of a foreign country where the English common law forms substantially the basis of that country's jurisprudence, where English is the language of instruction and practice in the courts of that jurisdiction and which state, Territory, or country allows members of the American Samoa Bar to appear Pro Hac Vice, may at the discretion of the Chief Justice, be permitted, upon written application, to appear as Counsel Pro Hac Vice. However, an active member of the American Samoa Bar Association must be associated as Attorney of Record, upon whom service of process may be made and with whom the judge and opposing counsel may communicate concerning the action. A person permitted to appear as counsel Pro Hac Vice pursuant to this rule is subject to the jurisdiction of the High Court with respect to the Disciplinary Rules to the same extent as a member of the American Samoa Bar Association.
RULE 146.OFFICIALS PROHIBITED FORM PRACTICING LAW. The Speaker of the House, the President of the Senate, the Governor, and the Lieutenant Governor are prohibited from practicing law in American Samoa during their terms in office.
X. DISCIPLINARY RULES.
RULE 152.DEFINITIONS AND JURISDICTION. As used in these rules; "bar" is the American Samoa Bar Association; and "member" is a member, former member of the American Bar Association or an attorney admitted pro hac vice.
Any attorney admitted to practice law in American Samoa and any attorney specially admitted for a particular proceeding, is subject to the exclusive disciplinary jurisdiction of the High Court.
(a) any act or omission by a member which breaches the Rules of Professional Conduct, as amended;
(b) conviction of a crime involving mora turpitude; and
(c) inability of an attorney to competently represent his clients for any reason whatsoever.
Effective June 16, 1989
RULE 156.CONFIDENTIALITY OF RECORDS. Except as otherwise provided in these rules, investigation of complaints, informal hearings, formal proceedings, and any information produced therefrom or concerning the pendency or status thereof, shall not be public. However, upon request, the High Court may advise a complainant of the status of an investigation, informal hearing or formal proceeding.
RULE 157.PUBLIC HEARING. The hearings of a formal proceeding shall be public when requested by the member under investigation. When such a request is made, any formal pleadings, transcripts, exhibits, statements, decisions, findings, conclusions and recommendation, reprimand, dismissal or other decision resulting from such public hearings and the record shall be available for public inspection, but copies thereof shall be made only at the expense of the person requesting the same.
RULE 158.COMPLAINTS. A request for review, investigation or other appropriate action, notwithstanding its form or the designation of the person making its as a complainant, is deemed a complaint. A request for an investigation may be made by the Chief Justice whether or not a complaint has been made.
RULE 159.DUTY OF COMPLAINANT. It is the duty of the person making a complaint, upon request, to supply additional information, including the names and addresses of witnesses and all writing or other evidence in his or her possession concerning the matter, to testify at any investigation, informal hearing, or formal proceeding on the matter and to otherwise assist the High Court in obtaining or securing evidence.
RULE 160.UNWILLINGNESS OF COMPLAINANT TO PROCEED. Neither the unwillingness or neglect of the complainant to proceed, nor a settlement, compromise or restitution, necessarily prohibits the High Court from undertaking or completing an investigation, informal hearing or formal proceeding.
RULE 161.INFORMAL HEARING. At the request of the Chief Justice, a district court judge shall conduct an informal hearing. Strict rules of evidence do not apply. Unless the right to be heard has been waived, the member is entitled to an opportunity to be heard during the hearing, in person and by counsel. If the District Court Judge determines that reasonable cause does not exist for further proceedings, the District Court Judge shall terminate the matter, with a brief written statement of reasons. The Chief Justice, the member and the complainant shall be informed of such action. The District Court Judge may institute further investigation and subsequent informal hearings, or may recommend to the hearing panel consensual discipline or refer the complaint to the hearing panel for the institution of formal proceedings.
RULE 162.FORMAL PROCEEDINGS.The formal proceeding is commenced by the issuance of an Order to Show Cause by the hearing panel directed to the member. The order must specify in concise terms the acts, omissions or facts which constitute the alleged violation or violation.
RULE 163.COMPOSITION OF HEARING PANEL. The Chief Justice shall appoint a hearing panel consisting of an associate justice, a district court judge who did not conduct the informal hearing, and one associate judge. Should a district court judge not be available for the hearing panel, an associate judge may be substituted for him.
RULE 164.APPOINTMENT OF DISCIPLINARY COUNSEL. The hearing panel shall appoint a member of the Bar, who is not involved in any cases or matters with or against the member under investigation, as disciplinary counsel and require him or her to perform the duties of disciplinary counsel.
(a) investigate and prosecute formal complaints when recommended by the hearing panel;
(b) respond to appeals from the imposition of discipline:
(c) investigate and present evidence at hearings on petitions for reinstatement; and
(d) perform such other duties as the hearings panel shall direct.
RULE 166.ANSWER. A written answer to the Order to Show Cause must be filed by the member within twenty (20) days after service of the Order. The answer must contain an address to which all further notices to the member in relation to the proceeding shall be sent, an admission, denial or explanation of the allegations set forth in the Order to Show Cause, and such other matter by way of defense as may be relevant. The time for filing an answer may be extended for good cause shown.
RULE 167.NOTICE OF HEARING. Notice of the formal hearing, either in the Order to Show Cause or by a Notice of Hearing served upon the parties, must be given not less than twenty (20) days before the hearing date, unless a shorter period of time is agreed to by a written stipulation of the parties.
RULE 168.DISCOVERY. Discovery as permitted by the Rules of Civil Procedure, is allowed in formal proceedings. For purposes of discovery, the Disciplinary Counsel is deemed the plaintiff and the member is deemed the defendant. The functions of a trial court in discovery shall be performed by the hearing panel.
RULE 169.TIME PERIOD FOR DISCOVERY. To avoid unnecessary delay, each party shall complete formal discovery within 30 days after service of the Order to Show Cause. The parties shall meet and stipulate to that evidence which either party will voluntarily release. Only after such a meeting shall formal discovery proceedings commence.
RULE 170.DEPOSITIONS. Deposition expenses shall be borne by the party taking the deposition, except for any copy ordered by the opposing party. Except as otherwise stipulated, attendance of the deponent and the production of books, papers or things, shall be compelled by subpoena, and, in the case of the production of books, papers or records, upon the filing of an affidavit or a declaration under penalty of perjury describing them with reasonable certainty and showing good cause for their production.
RULE 171.HOLDING FORMAL PROCEEDING IN ABEYANCE. Upon written motion of the member and for good cause shown, the hearing panel may order the matter before it stayed for such time, and upon such terms, as it deems proper.
RULE 172.RULES OF EVIDENCE. The American Samoa Rules of Evidence shall apply in a formal proceeding, but no error in admitting or excluding evidence shall invalidate a finding of fact, decision or determination, unless the error or action complained of resulted in a denial of a fair hearing.
The member who is the subject of an investigation, informal hearing, or formal proceeding may enter into a proposed stipulation with the District Court Judge in an informal proceeding or with the hearing panel for the disposition of the charges pending. All stipulations pursuant to this rule shall set forth each of the following:
(a) the pending investigation, informal hearing, or formal proceeding involved;
(b) a statement of acts or omissions of the member which are admitted by the member and acknowledged by the member as cause for discipline;
(c) a statement of mitigating circumstances, if any; and
(d) the discipline to be imposed or action to be taken with respect to the member.
(a) private reprimand;
(b) public reprimand;
(c) restriction of practice before the High Court, District Court or Village Courts.
(d) suspension for a period of time;
(e) or any combination of the above; or
Subsections (b) through (e) are considered public discipline.
RULE 176.DECISION. The opinion of the majority of the hearing panel shall constitute the panel's decision. After a decision is reached it shall be shall be served upon the member and the complainant. The hearing panel shall make its decision in writing. The decision shall contain a brief statement of the proceedings had, findings of fact, and the action taken.
RULE 177.MOTION TO RECONSIDER. With in ten (10) days after service upon a party of the decision, the party may serve and file a written motion in support of or requesting reconsideration in whole or in part of the decision. Within five (5) days after service of the motion, the opposing party may serve and file objections thereto, which objections may be supported by affidavit or declaration under penalty of perjury. Any motion or opposition referred to in this rule shall be presented to and decided by the hearing panel. The ruling of the hearing panel on any such motion shall be in writing and shall be served on the parties.
RULE 178.APPEAL TO THE CHIEF JUSTICE. The member may appeal a decision of the hearing panel imposing discipline by filing a petition for review with the Chief Justice, together with proof of service thereof on both the disciplinary counsel and the hearing panel, within ten (10) days after service of the decision upon him, or if there was a motion for reconsideration, within ten (10) days after service upon him of the decision on the motion. Within twenty (20) days after filing a petition for review the member shall serve on the disciplinary counsel and file with the Chief Justice his brief. Disciplinary counsel shall serve and file a reply brief within fifteen (15) days after service of the member's brief. The Chief Justice may entertain such oral argument as he deems necessary. The Chief Justice may affirm, reverse or modify the decision, or remand the matter for further proceedings. The Chief Justice may, either on his own or on application by the member, stay imposition of discipline pending his decision on the appeal. The stay may be granted on such conditions as the Chief Justice deems appropriate.
RULE 179.EFFECTIVE DATE OF DISCIPLINE. Imposition of discipline shall be effective immediately after service on the member of the hearing panel's decision unless a stay has been granted by the Chief Justice, in which case imposition of discipline shall be effective immediately after service of the Chief Justice's decision on the member.
RULE 180.NOTICE OF PUBLIC DISCIPLINE. On or after the imposition of discipline, the hearing panel or the Chief Justice, as may be appropriate, shall transmit written notice of any public discipline to all justices and judges of the Judiciary of American Samoa and shall cause the same to be published in a newspaper of general circulation. A suspended or disbarred member, or one restricted to practice as provided in 175(c) HCR shall promptly notify his clients of the discipline imposed.
RULE 181.REINSTATEMENT. A person who has been suspended for more than 3 months may not apply for reinstatement until the period of suspension has terminated. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least 3 years from the effective date of the disbarment or surrender of license. The petition for reinstatement shall be verified and contain the following:
(a) copy of the decision imposing discipline;
(b) specific reasons why reinstatement should be granted; and
(c) any other evidence showing that the petitioner is fit for the trust, confidence, and professional responsibilities reposed in member of the Bar by the High Court and the people of American Samoa.
The petition shall be accompanied by a filing fee of $100. The Chief Justice after review of the petition and recommendation by the Standing Committee, may deny, grant, or conditionally grant the petition. If the petitioner is found unfit to resume the practice of law, the petition shall be denied. If the petitioner is found fit to resume the practice of law, he shall be reinstated. But such reinstatement may be made condition upon the payment of all or part of the costs of the proceeding, and upon the making of partial or complete restitution to parties harmed by the petitioner's misconduct which let to his suspension or disbarment.
RULE 182.INCAPACITY OF ATTORNEY OR PRACTITIONER. Proceedings to determine whether or not a person engaged in the practice of law in American Samoa has because of mental or physical infirmity or illness or because of addiction to drugs or intoxicants become incapable of devoting the time and attention to and providing the quality of service for his law practice which is necessary to protect the interest of clients, shall be conducted substantially in accordance with these rules. However, no discipline is to be imposed. The decision to be reached by the Chief Justice is whether to leave the member in active status or to place the member on inactive status until the member is determined competent to once again resume active status. All proceedings and reports in such matters are confidential and not open to the general public. At any time after the member has been placed on inactive status, the member may petition the Chief Justice to be replaced on active status.
RULE 183.IMMUNITY. Disciplinary counsel and the judges and justices sitting at an informal or formal hearing brought under these rules have absolute immunity from liability for any conduct performed in the course of official duties. The complainant is not liable for institution of disciplinary proceedings except on a showing of both falsity of statements made by the complainant and malice of the complainant.
VILLAGE COURT RULES (VCR)
TABLE OF CONTENTS
RULE 1. TITLE. These rules shall be known as the Village Court Rules and shall be cited as ___________VCR. These rules supplement the statutory provisions dealing with proceedings before the Village Courts.
RULE 4. FORM OF COMPLAINT. Every complaint must be in writing and signed by the pulenu'u. It must state the date of issuance and the village where issued and the name and village of the accused. It must state that if the accused does not appear at the stated time and place before the judge of the Village Court an application may be made for the issuance of a bench warrant for his arrest.
(1) of the charge placed against him and the maximum possible fine that may be imposed upon conviction;
(2) of his right to remain silent, that anything he will be used against him, and that if he has made a statement he has the right not to say anything further;
(3) that he will not be questioned by any person regarding the offense unless he consents and that he has the right to consult with an attorney before being questioned further;
(4) that if at any time during any questioning regarding any offense he desires to consult with an attorney or desires the questioning to be stopped, it will be stopped; and
(5) of the general nature of the further proceedings to be taken in the case.
RULE 6. PLEAS. A defendant at the arraignment may plead guilty, not guilty or nolo contendere. If a defendant refuses to plead or if the court refuses to accept a plea of guilty, the court must enter a plea of not guilty.
(1) the nature of the charge to which the plea is offered;
(2) the maximum penalty provided by village regulations which may be imposed for the offense to which the plea is offered;
(3) that he has the right to plead not guilty; and
(4) that by pleading guilty he waives the right to a trial.
RULE 8. VOLUNTARINESS OF GUILTY PLEA. The court must not accept a plea of guilty without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats.
RULE 11. PLEA OF NOT GUILTY - TRIAL. If the accused pleads not guilty, the trial may proceed immediately if seven days have elapsed since the accused was served with a copy of the complaint. If 7 days have not elapsed, then the court shall continue the case for trial until 7 days after the service of the complaint on the accused.
RULE 12. SUBPOENA. Upon application by the pulenu'u or the accused, the clerk of courts shall issue a subpoena under seal of the court. The subpoena shall command each person to whom it is directed to attend the Village Court and give testimony at the time and place specified therein.
RULE 13. SERVICE OF SUBPOENA. A subpoena may be served by any law enforcement officer or by any other person who is not a defendant and who is not less that 18 years of age. Service or a subpoena must be made by delivering a copy thereof to the person named.
RULE 14. SENTENCE. When there is an adjudication of guilt, sentence must be imposed without unreasonable delay. Before imposing sentence, the court must afford the defendant a fair opportunity to be heard on the issue of his sentence.
APPELLATE COURT RULES(ACR)
TABLE OF CONTENTS
Rule 1.Title and Scope
Rule 2.Suspension of Rules
Rule 3Appeal as of Right - How Taken
Rule 4.Appeal as of Right - When Taken
Rule 7.Bond for Costs on Appeal in Civil Cases
Rule 8.Stay of Injunction Pending Appeal
Rule 9.Release in Criminal Cases
Rule 10.The Record on Appeal
Rule 11.Transmission of the Record
Rule 12.Docketing the Appeal; Filing of the Record
Rule 15.Review or Enforcement of Agency Orders How Obtained; Intervention
Rule 16.The Record on Review or Enforcement
Rule 17.Filing of the Record
Rule 18.Stay Pending Review
Rule 19.Settlement of Judgments Enforcing Orders
Rule 20.Applicability of Other Rules to Review or Enforcement of Agency Orders
Rule 21.Extraordinary Writs
Rule 22.Habeas Corpus Proceedings
Rule 23.Custody of Prisoners in Habeas Corpus Proceedings
Rule 24.Proceedings in Forma Pauperis
Rule 25.Filing and Service
Rule 26.Computation and Extension of Time
Rule 29.Brief of an Amicus Curiae
Rule 30.Appendix to the Briefs
Rule 31.Filing and Service of Briefs
Rule 33.Rehearing Conference
Rule 34.Oral Argument
Rule 36.Entry of Judgment
Rule 37.Interest on Judgments
Rule 38.Damages for Delay
Rule 40.Petition for Rehearing
Rule 41.Issuance of Mandate; Stay of Mandate
Rule 42.Voluntary Dismissal
Rule 43.Substitution of Parties
Rule 44.Cases Involving Constitutional Questions Where American Samoa Government is not a Party
Rule 45.Duties of Clerk
B. APPELLATE COURT RULES (ACR).
These rules govern procedure in appeals to the appellate division from the trial division, the land and titles division, and the district court and in proceedings in the appellate division for review or enforcement of orders of administrative agencies, boards, commissions and officers of American Samoa. When these rules provide for the making of a motion or application in the trial court, the procedure for making such motion or application shall be in accordance with the practice of the trial court. Reference to "judge" in these rules means a justice of the High Court.
RULE 2.SUSPENSION OF RULES. In the interest of expediting decision, or for other good cause shown, the appellate division may, except as otherwise provided in 26(b) ACR, suspend the requirements of provisions of any of these rules in a particular cause on application of a party or on its own motion and may order proceedings in accordance with its direction.
(a) Filing the Notice of Appeal. An appeal permitted by law as of right from the trial division, the land and titles division, or the district court to the appellate division shall be taken by filing a notice of appeal with the clerk of court within the time allowed by 4 ACR. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the appellate division (or a single judge of the appellate division as specifically provided for in these rules) deems appropriate, which may include dismissal of the appeal.
(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of the trial division, the land and titles division, or the district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate division upon its own motion or of a party or by stipulation of the parties to the several appeals.
(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal and shall designate the judgement, order or part thereof appealed from and a request for an estimate for the transcript of the proceedings. Appellant(s) shall have five (5) days from the filing of the notice of appeal to request a estimate of the transcript from the Court Reporters. If the five (5) days has elapsed and no request for a transcript has been filed with Court or appellant(s) advises that he will not be ordering a transcript and will be submitting the matter on the balance of the record described in ACR 10. (a) and (c), the time for filing appellant(s) brief shall be thirty five (35) days from the filing of the notice of appeal. Form 1 in the Appendix of Forms to the Federal Rules of Appellate Procedure is the suggested form of a notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal.
Counsel are reminded that it is their duty, not the Court Reporters, to file a copy of the receipt of payment of the transcript issued by the Court Reporters, and should familiarize themselves with High Court Appellate Court Rule 10(a) through (e).
(d) Service of the Notice of Appeal. The clerk of court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant or by placing the notice in the Court box, if a party is not represented by counsel, by personal service on him or by mailing the notice to the party at his last known address. When appeal is taken by a defendant in a criminal case, the clerk shall also serve a copy of the notice of appeal upon him, either by personal service or by mail addressed to him. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party of his counsel. The clerk shall note in the docket the names of the parties upon whom he serves copies, with the date of service.
(e) Payment of Fees. Upon the filing of any separate or joint notice of appeal from the trial division, the land and titles division, or the district court, the appellant shall pay to the clerk of court such as established by 26 HCR.
Effective March 25, 1986
(a)Appeals in Civil Cases.
(1) In a civil case in which an appeal is permitted by law as of right from the trial division, the land and titles division, or the district court to the appellate division, a motion for a new trial as required by 43.0802 A.S.C.A. shall be filed with the clerk of court within 10 days after the date of entry of the judgment or order appealed from. The notice of appeal shall be filed within 10 days after the denial of the motion for a new trial.
(2) Except as provided in (a)(4) of this rule, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or ordershall be treated as filed after such entry and on the day thereof.
(3) If a timely notice of appeal is not filed by a party any other party may file a motion to dismiss the appeal and the appellate division or a single judge thereofmay consider and determine the motion.
(4) If a timely motion is filed in the trial division, land and titles division, or district court by any party under 52(b) TCRCP to amend or make additional findings of fact, the time for appeal for all parties shall run from the entry of the order granting or denying any such motion. A notice of appeal filed before the disposition of the above motion shall have no effect. A new notice ofappeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.
(6) A judgment or order is entered within the meaning of this 4(a) ACR when it is entered in compliance with 58 T.C.R.C.P.
(b)Appeals in Criminal Cases. In a criminal case a motion for a new trial by a defendant as required by 43.0802 A.S.C.A. shall be filed in the trial division or district court within 10 days after the entry of the judgment or order appealed from. The notice of appeal shall be filed within 10 days after the denial of the motion for a new trial. A notice of appeal filed after the announcement of decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment has been made, an appeal from a judgment of conviction must be taken within 10 days after the entry of an order denying the motion. When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the trial division or district court within 10 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket.
RULE 7.BOND FOR COSTS ON APPEAL IN CIVIL CASES. The trial division, land and titles division or district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to ensure payment of costs on appeal in a civil case. The provisions of 8(b) ACR apply to a surety upon a bond given pursuant to this rule.
(a)Stay Must Ordinarily Be Sought in the First Instance in Trial Court; Motion for Stay in Appellate Division. Application for a stay of the judgment or order of the trial division, land titles division, or district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying , restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the trial court. A motion for such relief may be made to the appellate division or to a judge thereof, but the motion shall show that application to the trial court for the relief sough is not practicable, or that the application has been denied, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action. The motion shall also the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk and may be made to and considered by a single justice of the appellate division.
(b)Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available under this rule may be conditioned upon the filing of a bond or other appropriate security. If security is given in the form of a bond or stipulation or other undertaking with one o more sureties, each surety submits himself to the jurisdiction of the trial court and irrevocably appoints the clerk of court as his agent upon whom any papers affecting his liability on the Bond or undertaking maybe served liability may be enforced on motion in the trial court without the necessity of an independent action. The motion and such notice of the motion as the trial court prescribes may be served on the clerk of court, who shall forthwith mail copies to the sureties if their addresses are known.
(c)Stays in Criminal Cases. Stays in criminal cases shall be had in accordance with the provisions of 38 T.C.R.CR.P.
(a)Appeals from Orders Respecting Release Entered Prior to a Judgment of Conviction. An appeal authorized by law from an order refusing or imposing conditions of release, shall be determined promptly, upon entry if order refusing or imposing condions of releasre the trial division or the district court shall state in writing the reasons for the action taken. The appeal shall be heard without the necessity of briefs after reasonable notice to the appellee upon such papers, affidavits, and portions of the record as the parties shall present. The appellate division or a judge thereof may order the release of the appellant pending the appeal.
(b)Release Pending Appeal from a Judgement of Conviction. Application for release after a judgement of conviction shall be made in the first instance in the trial division or the district court. If the trial division or the district court refuses release pending appeal or imposes conditions of the district court refuses release pending appeal or imposes conditions or release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the appellate division or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The appellate division or a judge thereof may order the release of the appellant pending disposition of the motion.
(c)Criteria for Release. The decision as to release pending appeal shall be made in accordance with the relevant provisions of the American Samoa Code Annotated. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
(a)Composition of the Record of Appeal. The original papers and exhibits filed in the trial division, land and titles division, or district court, the transcript of proceedings, if any, and if ordered by either party, and a certified copy of the docket entries prepared by the clerk of court shall constitute the record on appeal in all cases.
(b) The Transcript of Proceedings; Duty of Appellate to Order; Notice to Appellee if Partial Transcript is Ordered.
(1) Within 10 days after receiving the reporter's or clerk's estimate the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary. The order shall be in writing and within the same period a copy shall be filed with the clerk of court and served on the appellate. If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect.
(2) If the appellant intends to urge on appeal that a finding or conclusions is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.
(3) Unless the entire transcript is to be included, the appellant shall, within the 10 days time provided in (b)(1) of this rule, file a statement of the issues he intends to present on the appeal and shall on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript of other parts ofthe proceedings to be necessary, he shall within 10 days after the service of the order or certificate and the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. Unless within 10 days after service of such designation the appellant has ordered such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the trial division, land and titles division or district court for an order requiring the appellant to do so.
(4) At the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporter. The deposit is subject to revision by the reporter when the transcript is completed. Counsel must file a copy of the reporter's receipt with the clerk of court. By order of the High Court, the cost may be raised to match that in the United States District Court, Honolulu, Hawaii, but in no event shall it be less than $.50 per page. Where the appellant orders the transcript and there are only two parties, the appellant must order and pay for the original and two copies of the transcript. the original will remain in the court's case file open to public inspection at the Courthouse. Appellant will deliver a copy to appellee and retain a copy. Where there is only one appellant and more than one appellee, the appellant must order and pay for a copy for each appellee. Where there is more than one appellant in a case, each must order and pay for one copy of the transcript and pay a proportionate share of the cost of the original transcript and a copy for each appellee. Costs of transcripts may be taxed in accordance with 54(d) TCRCP. If an appellant is represented by the Public Defender's Office or the Office of the Attorney General, then the estimated cost of the transcript need not be deposited as the time of ordering the transcript; rather, upon completion of the transcript, the court reporter is to transmit written notice of the cost of the transcript to the appellant's counsel, and payment of the cost is to be made as timely as practicable.
(5) The appellate division may on its own motion or motion by either party dismiss the appeal for failure of a party to comply with any of the aboveprovisions.
(c)Statement of the Evidence or Proceedings; When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing on report or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. There upon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of court in the record on appeal.
(d)Agreed Statement As the Record On Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided below and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court below may consider necessary fully to present the issues raised by the appeal, shall be approved by the court below and shall then be certified to the appellate division as the record on appeal and transmitted thereto by the clerk of court within the time provided by 11 ACR. Copies of the agreed statement may be filed as the appendix pursuant 30 ACR.
(e)Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the court below, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the court below, either before or after the record is transmitted to the appellate division, or the appellate division on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate division.
Effective April 27, 1982.
(a)Duty of Appellant. After filing the notice of appeal the appellant, or in the event that more than one appeal is taken, each appellant, shall comply with the provisions of 10(b) ACR and shall take any other action necessary to enable the clerk to assemble the record.
(b)Duty of Reporter to Prepare and File Transcript; Notice to Appellate Division. Upon receipt of an order for a transcript, the reporter shall acknowledge at the foot of the order the fact that he has received it and the date on which he excepts to have the transcript completed and shall transmit the order, so endorsed, to the clerk of court. If the transcript cannot be completed within 30 days of receipt of the order the reporter shall request an extension of time from the clerk of court and the action of the clerk of court shall be entered on the docket and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of court shall notify the court below and take such steps as may be directed by the court below. Upon completion of the transcript the reporter shall file it with the clerk of court.
(a)Docketing the Appeal. Upon receipt of the copy of the notice of appeal the clerk of court shall thereupon enter the appeal upon the docket. An appeal shall be docketed under the title given to the action in the trial court, with the appellant identified as such, but if such title does not contain the name of the appellant, his name, identified as appellant, shall be added to the title.
(b)Filing the Record, Partial Record, or Certificate. Upon receipt of the reporter's transcript and completion of assembly of the record on appeal, the clerk of court shall file it and shall immediately give notice to all parties of the date on which it was filed.
(a)Petition for Review of Order; Joint Petition. Review of an order of an administrative agency, board, commission or officer of the American Samoa Government (hereinafter, the term "agency" shall include agency, board, commission or officer) shall be obtained by filing with the clerk of court within the time prescribed by law, a petition to the appellate division to enjoin, set aside, suspend, modify or otherwise review. The petition shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. Form 3 in the Appendix of Forms to the Federal Rules of Appellate Procedures is a suggested form of a petition for review. In each case the agency shall be named respondent. The American Samoa Government shall also be deemed a respondent if so required by statute, even though not so designated in the petition. If two or more persons are entitled to petition for review of the same order and their interests are such as to make joinder practicable, they may file a joint petition for review and may thereafter proceed as a single petitioner. Within 20 days after the petition is filed, the respondent shall serve on the petitioner and file with the clerk an answer to the petition.
(b)Application for Enforcement of Order; Answer; Default; Cross-Application for Enforcement. An application for enforcement of an order of an agency shall be filed with the clerk of court. The application shall contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief prayed. Within 20 days after the application is filed, the respondent shall serve on the petitioner and file with the Clerk an answer to the application. If the respondent fails to to file an answer within such time, judgment will be rewarded for the relief prayed. If a petition is filed for review or an order which the appellate division has jurisdiction to enforce, the respondent may file a cross-application for enforcement.
(c)Service of Petition or Application. A copy of a petition for review or of an application or cross-application for enforcement of an order shall be served by the clerk on each respondent in the manner prescribed by 3 (d) ACR. At the time of filing, the petitioner shall furnish the clerk with a copy of the petition or application for each respondent. At or before the time of filing a petition for review, the petitioner shall serve a copy thereof on all parties who shall have been admitted to participate in the proceedings before the agency other than respondents to be served by the clerk, and shall file with the clerk a list of those so served.
(d)Intervention. A person who desires to intervene in a proceeding under this rule shall serve upon all parties to the proceeding and file with the clerk of court a motion for leave to intervene. The motion shall contain a concise statement of the interest of the moving party and the ground upon which intervention is sought. A motion for leave to intervene shall be filed within 30 days of the date on which the petition for review is filed.
(a)Composition of the Record. The order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agency shall constitute the record on review in proceedings to review or enforce the order of an agency.
(b)Omissions From or Misstatements in the Record. If anything material to any party is omitted from the record or is misstated therein, the parties may at any time supply the omission or correct the misstatement by stipulation, or the appellate division or judge thereof, may at any time direct that the omission or misstatement be corrected and, if necessary, that a supplemental record be prepared and filed.
(a)Agency to File; Time for Filing; Notice of Filing. The agency shall file the record with the clerk of court within 30 days after service upon it of the petition for review. In enforcement proceedings the agency shall file the record within 30 days after filing an application for enforcement, but the record need not be filed unless the respondent has filed an answer contesting enforcement of the order, or unless the appellate division or judge thereof otherwise orders. The court may shorten or extend the time above prescribed. The clerk shall give notice to all parties of the date on which the record is filed.
(b)Filing - What Constitutes. The agency may file the entire record or such parts thereof as the parties may designate by stipulation filed with the agency. The original papers in the agency proceeding or certified copies thereof maybe filed. Instead of filing the record or designated parts thereof, the agency may file a certified list of all documents, transcripts of testimony, exhibits and other material comprising the record, or a list of such parts thereof as the parties may designate, adequately describing each, and the filing of the certified list shall constitute filing of the record. The parties may stipulate that neither the record nor a certified list be filed with appellate division. The stipulation shall be filed with the clerk of court and the date of its filing shall be deemed the date on which the record is filed. If a certified list is filed, or if the parties designate only parts of the record for filing or stipulate that neither the record nor a certified list be filed, the agency shall retain the record or parts thereof. Upon request of the appellate division or the request of a party, the record or any part thereof thus retained shall be transmitted to the appellate division notwithstanding any prior stipulation. All parts of the record retained by the agency shall be a part of the record on review for all purposes.
RULE 18.STAY PENDING REVIEW. Application for a stay of a decision or order of an agency pending direct review in the appellate division shall ordinarily be made in the first instance to the agency. A motion for such relief may be made to the appellate division or to a judge thereof but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the applicant had requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant to the relief sought. Reasonable notice of the motion shall be given to all parties to the proceeding in the appellate division. The court may condition relief under this rule upon the filing of a bond or other appropriate security.
RULE 19.SETTLEMENT OF JUDGMENTS ENFORCING ORDERS. When an opinion of the appellate division is filed directing the entry of a judgment enforcing in whole or in part the order of an agency, the agency shall within 14 days thereafter serve upon the respondent and file with the clerk a proposed judgment in conformity with the opinion. If the respondent objects to the proposed judgment as not in conformity with the opinion, he shall within 7 days thereafter serve upon the agency and file with the clerk a proposed judgment which he deems to be in conformity with the opinion. The appellate division or a judge thereof will thereupon settle the judgment and direct its entry without further hearing or argument.
All provisions of these rules are applicable to review or enforcement of orders of agencies, except that 3 ACR through 12 ACR and 22 ACR and 23 ACR are not applicable. As used in any applicable rule, the term "appellant" includes a petitioner and their term "appellee" includes a respondent in proceedings to review or enforce agency orders.
(a)Application for the Original Writ. An application for a writ of habeas corpus shall be made to the appellate division, the trial division or district court.
(b)Detention or Release of Prisoner Pending Review of Decision Failing to Release. Pending review of a decision failing or refusing to release a prisoner in such a proceeding, the prisoner may be detained in the custody from which release is sought, or in other appropriate custody, or may be enlarge upon his recognizance, with or without surety, as may appear fitting to the court of justice or judge rendering the decision, or to the appellate division, or to a justice of the appellate division.
(c)Release of Prisoner Pending Review of Decision Ordering Release. Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the appellate division, or a justice of the appellate division shall otherwise order.
(d)Modification of Initial Order Respecting Custody. An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in appellate division unless for special reason shown to the appellate division or to a justice of the appellate division, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.
(a)Leave to Proceed on Appeal in Forma Pauperis from Trial Court to Appellate Division. A party to a criminal action in the trial division or district court who desires to proceed on appeal in forma pauperis shall file in the court below a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of their issues which he intends to present on appeal. If the motion is granted, the party may proceed without further application to the appellate division and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the court below shall state in writing the reasons for the denial.
Notwithstanding the provisions of the preceding paragraph, a party who has bee permitted to proceed in an action in the court below in forma pauperis, or who has be permitted to proceed there as one is financially unable to obtain adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the court below shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the court below shall state in writing the reasons for such certification or finding.
If a motion for leave to proceed on appeal in forma pauperis is denied by the court below, or if the court below certifies that the appeal is not taken in good faith or finds that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the appellate division within 30 days after service of notice of the action of the court below. The motion shall be accompanied by a copy of the affidavit filed in the court below, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the court below, and by copy of the statement of reasons given by the court for its action.
(b)Leave to Proceed on Appeal or Review in Forma Pauperis in Administrative Agency, board, commission or officer who desires to proceed on appeal or review in the appellate division in forma pauperis, when such appeal or review may be had directly in the appellate division, shall file in the appellate division a motion for leave so to proceed, together with the affidavit prescribed by the first paragraph of (a) of 24 ACR.
(a)Filing. Papers require or permitted to be filed in the appellate division shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. If a motion requests relief which may be granted by a single judge, the judge may permit the motion to be filed with him, in which event he shall not thereon the date of filing and shall thereafter transmit it to the clerk.
(b)Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting from him on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel.
(c)Manner of Service. Service may be by personal service, by placing the papers in the attorney's Court box, or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing.
(d)Proof of Service. Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service may appear on or be affixed to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter.
(a)Computation of Time. In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" includes New Year's Day, Washington's Birthday, Flag Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the Governor or the fono.
(b)Enlargement of Time. The appellate division or a judge thereof for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but neither the appellate division nor a judge thereof may enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the appellate division or a judge thereof enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review an order of an administrative agency, board, commission or officer of the American Samoa Government, except as specifically authorized by law. If there is no judge present in the Territory who is qualified to sit as a member of the appellate division on a particular case, motions for enlargement of time may be directed to the judge who rendered the decision appealed from in the trial division. His ruling may be reviewed by the appellate division or a judge thereof.
(c)Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, six (6) days shall be added to the prescribed period.
Effective July 15, 1987
(a)Content of Motions; Response; Reply. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order of relief sought. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion within seven (7) days after service of the motion, but motions authorized by 8, 9, 18, and 41 ACR may be acted upon after reasonable notice, and the appellate division or a judge thereof may shorten or extend for responding to any motion.
(b)Determination of Motions for Procedural Orders. Notwithstanding the provisions of 27(a) ACR as to motions generally, motions of or procedural orders, including any motion under 26(b) ACR, may be acted upon at any time, without awaiting response thereto. Any party adversely affected by such action may by application to the court request consideration, vacation, or modification of such action.
(c)Power of a Single Judge to Entertain Motions. In addition expressly conferred by these rules or by law, a single justice of the appellate division may entertain and may grant or deny any request for relief which under these ruled may properly be sought by motion, except that a single justice unless otherwise provided by these rules may not dismiss or otherwise determine an appeal or other proceeding, and except that the appellate division may provide by order or rule that any motion or class of motions must be acted upon by the entire appellate division. The action of a single justice may be reviewed by the appellate division. If there is no judge in the Territory who is qualified to sit as a member of the appellate division on a particular case, motions for procedural orders may be directed to the judge who rendered the decision appealed from in the trial division. His ruling may be reviewed by the appellate division or a judge thereof.
(d)Form of Papers; Number of Copies. All papers relating to motions must be typewritten. Only an original need be filed, but the appellate division or a judge thereof may require that one or more copies be furnished.
Effective July 15, 1987
(a)Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with page references, and a table of cause (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.
(2) A statement of the issues presented for review.
(3) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)).
(4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.
(5) A short conclusion stating the precise relief sought.
(b)Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a) (1)-(4), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.
(c)Reply Brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of the appellate division or a judge thereof.
(d)References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the lower court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the ship," "the stevedore," etc.
(e)References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant (see 30(a) ACR) shall be to the pages of the appendix at which those parts appear.
(f)Reproduction of Statutes, Rules, Regulations, Etc. If determination of the issues presented requires the study of statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end, or they may be supplied to the court in a pamphlet form.
(g)Length of Briefs. Except by permission of the appellate division or a judge thereof, principal briefs shall not exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusive of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc.
(h)Briefs in Cases Involving Cross Appeals. If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and 30 and 31 ACR, unless the parties otherwise agree or the appellate division or a judge thereof otherwise agree or the appellate division or a judge thereof otherwise orders. The brief of the appellee shall contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant.
(i)Briefs in Cases involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.
(j)Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after his brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.
A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of the appellate division or a judge thereof granted on motion or at the request of the court, except the consent or leave shall not be required when the brief is presented by the American Samoa Government, United States or an officer or agency thereof, or by a State, Territory of commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the appellate division or a judge thereof for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.
(a)Duty of Appellant to Prepare and File; Content of Appendix. The appellant may prepare and file an appendix to the briefs which may contain:
(1)the relevant docket entries in the proceeding below;
(2) any relevant portions of the pleadings, charge, findings or opinion;
(3) the judgment, order or decision in question; and
(4) any other parts of the record to which the parties wish to direct the particular attention of the court. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts.
(f)Hearing of Appeals on the Original Record; Necessity of an Appendix. The appellate division or a judge thereof may require in specific cases an appendix or require or permit appeals to be heard on the original record.
(a)Time for serving and filing briefs. The appellant shall serve and file his brief within 40 days after the date on which the record is filed. The appellee shall serve and file his brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument.
(b)Number of Copies to be Filed and Served. Five legible copies of each brief shall be filed with the clerk, unless the appellate division or judge thereof by order in a particular case shall direct a lesser number, and one copy shall be served on counsel for each party separately represented.
(c)Consequence of Failure to File Briefs. If an appellant fails to file his brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal or appellate division or a judge thereof may on its or his own motion dismiss the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the appellate division.
The appellate division or judge thereof may direct the attorneys for the parties to appear before the appellate division or a judge thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding. The appellate division or judge thereof shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceeding, unless modified to prevent manifest injustice.
(a)In General, oral argument shall be allowed in all cases unless the appellate division, after examination of the briefs and record, shall be unanimously of the opinion that oral argument its not needed. Every party shall have an opportunity to file a statement or present to the appellate divisionthe reasons why, in his opinion oral argument should be heard.
Oral argument will be allowed unless:
(1) the appeal is frivolous; or
(2) the dispositive issue or set of issues has been recently authoritatively decided; or
(3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.
(b)Notice of Argument; Postponement. The clerk shall advise all parties whether oral argument is to be heard, and if so, of the time and place therefor, and the time to be allowed each side. A request for postponement of the argument of for allowance of additional time must be made by motion filed reasonably in advance of the date for hearing.
(c)Order and Content of Argument. The appellate is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel will not be permitted to read at length from briefs, records or authorities.
(d)Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate division or judge thereof otherwise directs. If a case involves cross-appeal, the plaintiff in the action below shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the appellate division or judge thereof otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.
(e)Non-Appearance of Parties. If the appellee fails to appear to present argument, the appellate division will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the appellate division may hear argument on behalf of the appellee, if his counsel is present. If neither party appears, the case will be decided on the briefs unless the appellate division shall otherwise order.
(f)Submission on Briefs. By agreement of the parties, a case may be submitted for decision on the briefs, but the appellate division or judge thereof may direct that the case be argued.
(g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the court room before the appellate division convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the court room unless the appellate division otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.
The notation of a judgment in the docket constitutes entry of the judgment. The clerk shall prepare, sign and enter the judgement following receipt of the opinion of the appellate division unless the opinion directs settlement of the form of the judgment, in which event the clerk shall prepare, sign and enter the judgment following final settlement. If a judgment is rendered without an opinion, the clerk shall prepare, sign and enter the judgment following instruction form the appellate division. The clerk shall, on the date judgment is entered, mail to all parties or place in the attorney's Court box a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of the judgment.
Unless otherwise provided by law, if judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the trial court. If a judgment is modified or reversed with a direction that judgment for money be entered in the trial court, the mandate shall contain instructions with respect to allowance of interest.
If the appellate division shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.
(a)To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs may be taxed against the appellant unless otherwise agreed by the parties or ordered by the appellate division; if a judgment is affirmed, cost may be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs may be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs may be allowed only as ordered by the appellate division.
(b)Costs For and Against the American Samoa Government or the United States. In cases involving the America Samoa Government or the United States or an agency or officer thereof, if an award or costs against the American Samoa Government or the United States is not prohibited by law, costs may be awarded in accordance with the provisions of subdivision (a).
(c)Costs of Briefs, Appendices, and Copies of Records. The cost of producing necessary copies of briefs, appendices, and copies of records shall be taxable in the appellate division at rates not higher than those generally charged for such work in American Samoa.
(d)Bill of Costs; Objections; Cost to be Inserted in Mandate or Added Later. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which he shall file with the clerk, with proof of service, within 14 days after the entry of judgment. Objection to the bill of costs must be filed within 10 days of service on the party against whom costs are to be taxed unless the time is extended by the appellate division or judge thereof. The clerk shall prepare and certify an itemized statement of costs taxed in the appellate division for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs and if the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate at the direction of the clerk of court.
(e)Costs on Appeal Taxable in the Trial Court. Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to reserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule when ordered by the appellate division or a judge thereof.
(a)Time for Filing; Content; Answer; Action by Court if Granted. A petition for rehearing must be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the appellate division or judge thereof, but a motion for rehearing will ordinarily not be granted in the absence of such a request. If a petition for rehearing is granted the appellate division may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case.
(b)Service of Petition; Length. The petition shall be filed and served as prescribed by 31(b) ACR for the service and filing of briefs. Except by permission of the appellate division or judge thereof, a petition for rehearing shall not exceed 15 pages.
(a)Date of Issuance. The mandate of the appellate division shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion, if any, and any direction as to costs shall constitute the mandate, unless the appellate division directs that a formal mandate issue. The timely filing of a petition for rehearing will not stay the mandate unless otherwise ordered by the appellate division. If the appellate division has stayed the mandate in order to consider the petition and then the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarge by order.
(a) Dismissal in the Trial Court. If an appeal has not been docketed, the appeal be dismissed by the trial court upon the filing in that court of a stipulation for dismissal signed by all the parties, or upon motion and notice by the appellant.
(b)Dismissal in the Appellate Division. If the parties to an appeal or other proceeding shall sign and file with the clerk of court an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the appellate division. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the appellate division.
(a)Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the appellate division, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate division may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed substitution shall be effected in the appellate division in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by his personal representative, or, if he has no personal representative, by his attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the appellate division in accordance with this subdivision.
(b)Substitution of Other Causes. If substitution of a party in the appellate division is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).
(c)Public Officers; Death or Separation from Office.
(1) When a public officer is a party to an appeal or other proceeding in the appellate division in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2) When a public officer is a party to an appeal or other proceeding in his official capacity he may be described as a party by his official title rather than by name; but the appellate division may require his name to be added.
It shall be the duty of a party who draws in question the constitutionality of any act of the Fono of American Samoa in any proceedings in the appellate division to which the American Samoa Government or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the appellate division to give immediate notice in writing to the court of the existence of said question. The clerk shall thereupon certify such fact to the Attorney General.
(b)The Docket; Calendar; Other Records Required. The clerk shall keep a book known as the appellate docket, in such form and style as may be prescribed by the Chief Justice of the High Court of American Samoa, and shall enter therein each case. Cases shall be assigned consecutive file numbers. The file number of each case shall be noted on the folio of the docket whereon the first entry is made. All papers filed with the clerk and all process, orders and judgments shall be entered chronologically in the docket on the folio assigned to the case. Entries shall be brief but shall show the nature of each paper filed or judgment or order entered. The entry of an order or judgment shall show the date the papers were filed. The clerk shall keep a suitable index of cases contained in the docket.
The clerk shall prepare, under the direction of the Chief Justice High Court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he shall give preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law.
The clerk shall keep such other books and records as may be required form time to time by the Chief Justice of the High Court of American Samoa.
(c)Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a copy of the order of judgment by mail or by placing such in the attorney's Court box upon each party to the proceeding together with a copy of any opinion respecting the order or judgment, and shall make a note in the docket of the service. Service on a party represented by counsel shall be made on counsel.
(d)Custody of Records and Papers. The clerk shall have custody of the records and papers of the appellate division. He shall not permit any original record of paper to be taken from his custody except as authorized by the orders or instructions of the appellate division. Original papers transmitted as the record on appeal or review shall upon disposition of the case be returned to the court or agency from which they were received. The clerk shall preserve copies of briefs and appendices and other printed papers filed.
High Court of American Samoa
PAGO PAGO, AMERICAN SAMOA 96799
Thomas W. Murphy
November 13, 1981
American Samoa Bar Association
Mr. Roy J.D. Hall, Jr.
Pago Pago, American Samoa 96799
Dear Mr. Hall:
Your committee has requested that I render an opinion regarding residency requirements for applicants for admission to the American Samoa Bar Association to practice before the High Court of American Samoa.
While the new rules do not specifically set forth any length of time for resident prior to seeking admission to practice, it is clear that one must, of course, be a resident in order to apply for admission.
You may regard this opinion, as an amendment to the local rules for admission pursuant to the statute empowering the Chief Justice to promote a such rule. ASCA 31.0101.
/s/ Thomas W. Murphy
THOMAS W. MURPHY
Acting Chief Justice