7ASR2d

7ASR2d

National Pacific Ins. Co., Ltd. v. Mauala,


NATIONAL PACIFIC INSURANCE Co., Ltd., Plaintiff

v.

PAINAME MAUALA, NAOMI OSOIMALA, Estate of
MAFULI MALEKE LETULIGASENOA, and
Estate of ALEKI NOA, Defendants

STAR-KIST SAMOA, Inc., and TRAVELERS
INSURANCE Co., Intervenors

High Court of American Samoa
Trial Division

CA No.15-88

June 16, 1988

__________

Whether to award attorney fees in interpleader proceedings is within discretion of court.

Court should not award attorney fees to stakeholder in interpleader proceedings where the claims sought to be interpled are of a sort that ordinarily arise [7ASR2d147] in course of stakeholder's business and inter- pleader would be of benefit to the stakeholder even in the absence of an attorney fee award.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, TUIAFONO, Associate Judge.

Counsel: For Plaintiff, John Ward
For Defendants Mauala and Estate of Noa, Aviata Fa'alevao
For Defendants Osoimala and Estate of Letuligasenoa, Edwin Gurr
For Intervenors, Togiola T.A. Tulafono

On Motion to Deposit Funds and for Attorney Fees:

On May 13, 1988, the Court signed an order approving an interpleader sought by the plaintiff insurance company but denying plaintiff's request for attorney fees. In reply to a request from counsel, and in order to clarify our decision for the purposes of any such future requests, we now detail our reasons for denying those fees.

Whether to award attorney fees in interpleader proceedings lies within the discretion of the Court. See, e.g., James Talcott. Inc. v. Allahabad Bank Ltd., 444 F.2d 451, 468 (5th Cir.), cert., 404 U.S. 940 (1971); Schirmer Stevedoring Co. Ltd. v. Seaboard Stevedoring Corp., 306 F.2d 188, 194 (9th Cir. 1962). Such awards have sometimes been given to disinterested stakeholders who deposit the disputed fund with the Court. Courts that have done this usually reason that the stakeholder should be rewarded for promoting the expeditious resolution of conflicting claims or should be protected from having to bear the costs of avoiding conflicting claims that did not arise through its own fault. See, e.g. Schirmer Stevedoring, supra, 306 F.2d at 192. Scholars have likewise expressed their approval of awarding attorney fees to disinterested stakeholders in appropriate cases, pointing out that interpleader eliminates execution costs for prevailing claimants and generally does not significantly drain the interpleaded fund. See 3A J. Moore, Federal Practice par. 22.16[2]; 7 C. Wright & A. Miller, Federal Practice & Procedure § 1719. [7ASR2d148]

While we recognize the general desirability of interpleader as a procedural device and do not suggest that circumstances could never arise that might justify an award of attorney fees to the disinterested stakeholder, we do not feel that such an award is appropriate in a case such as the one before us. Courts seem generally to have refused to grant fees in interpleader cases where the claims are of the sort that arise in the ordinary course of the stakeholder's business. In Travelers Indemnitv Companv v. Israel, 354 F.2d 488 (2d Cir. 1965), for example, the court stated that it was "not impressed with the notion that whenever a minor problem arises in the payment of insurance policies, insurers may, as a matter of course, transfer a part of their ordinary cost of doing business to [the claimants] by bringing an action for interpleader." Id.. at 490 (per Friendly, J.); see also Minnesota Mutual Life Insurance Co. v. Gustafson, 415 F. Supp 615 (N.D. Ill. 1976).

Although it does benefit the Court and the claimants when an insurer interpleads a disputed fund, the insurer's motives for doing so are generally not altogether altruistic. Chief among the beneficiaries of the procedure is the insurer itself: the possibility of conflicting claims to a policy fund is a quotidian of the insurance business, and by interpleading the fund the insurer avoids the cost of litigating the conflicting claims and ensures that it will be exposed to no further liability on account of that policy. Gustafson, supra, 415 F. Supp. at 617-18. It should therefore be unnecessary to prod insurers to interplead by awarding them their attorney fees. Nor has a company that interpleads necessarily established its entitlement to recognition for extraordinarily virtuous conduct; sorting out claims upon their policies is what insurance companies are supposed to do. Thus neither of the reasons usually given for awards of attorney fees to stakeholders is at work in cases such as this one. Since we were not told of and cannot discover any circumstances to justify the payment of National Pacific's legal expenses from the interpleaded fund, its request for attorney fees is denied.

**********

Star-Kist Samoa, Inc.; Su’a v.


SUKI SU'A, Appellant

v.

STAR-KIST SAMOA, Inc., Appellee

High Court of American Samoa
Appellate Division

AP No. 17-87

February 11, 1988

__________

Assertion of jurisdiction by the National Labor Relations Board over alleged unfair labor practices preempts territorial court jurisdiction over such claims. 29 U.S.C. § 164(c).

While interests "deeply rooted in local feeling and responsibility" may give rise to exceptions to preemption of territorial court jurisdiction by the National Labor Relations Board, the expense and inconvenience to a local resident who must file a complaint at the National Labor Relations Board offices in San Francisco does not constitute such an interest.

Termination of employment due to union activity is perhaps the most obvious example of conduct which is federally preempted by the National Labor Relations Act and over which territorial court has no jurisdiction. [7ASR2d59]

Before KING*, Acting Associate Justice, O'SCANNLAIN**, Acting Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For Appellant, Charles Ala'ilima
For Appellee, John Ward

PER CURIAM:

Plaintiff alleged that his employment was terminated because of his participation in unsuccessful efforts to organize a union. Defendant moved to dismiss on the ground that the complaint falls within the exclusive jurisdiction of the National Labor Relations Board (NLRB). The trial judge granted the motion to dismiss. This appeal followed. We adopt the trial judge's reasoning and repeat most of his excellent opinion.

The NLRB has asserted its jurisdiction over employers in American Samoa who otherwise meet its jurisdictional standards. Van Camp Sea Food Co., 212 N.L.R.B. 76 (1974).

Earlier, the NLRB had held that it had no jurisdiction in Samoa. See, e.g. Star-Kist Samoa. 68 L.L.R.M. 1532 (1968). However, their 1974 change of position here remained unchallenged until now. If a complaint charges an unfair labor practice over which the NLRB has jurisdiction and if the NLRB has not declined to exercise its jurisdiction, the dispute resolution process set forth in the National Labor Relations Act and its amendments pre-empts the jurisdiction of state and federal courts. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); see 29 U.S.C. § 164(c). The NLRB clearly has jurisdiction over complaints that an employee has been discharged for attempting to organize a union. 29 U.S.C. §§ 157, 158(a)(1). The decision by the NLRB to exercise [7ASR2d60] its jurisdiction over tuna canneries and other employers in American Samoa who have the requisite impact on interstate or foreign commerce precludes the High Court from exercising jurisdiction.

Plaintiff urges, however, that the distance between American Samoa and the NLRB regional office in San Francisco, and the consequent expense and inconvenience for employees who wish to bring complaints before the NLRB, bring this action within an exception to the rule of NLRB pre-emption. In Garmon the Supreme Court noted that in certain cases "the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." 359 U.S. at 244. These cases, however, involved efforts by the states to regulate conduct (usually violence) which was regarded as objectionable on some other ground than that it constituted an unfair labor practice. See 359 U.S. at 244 n.2 and authorities cited therein; id. at 247. In this case, on the other hand, plaintiff asks the court to enforce the precise policy entrusted to the NLRB.

The Supreme Court has since made it clear that the "local feeling and responsibility" exception in Garmon did not give local courts the authority to define and punish unfair labor practices. Indeed, courts cannot decide cases involving conduct even arguably prohibited by the federal labor relations laws unless the labor relations aspect of the case is merely incidental. See Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 304-05 (1977):

If the charges in [the plaintiff's] complaint were filed with
the Board, the focus of any unfair labor practice proceeding
would be on whether the statements or conduct on the part
of union officials discriminated or threatened discrimination
against him... Conversely, the state court tort action [for
intentional infliction of emotional distress] can be adjudicated
without resolution of the "merits" of the underlying labor
dispute.... At the same time, we reiterate that concurrent
state court jurisdiction cannot be permitted when there is a
realistic threat of interference with the federal regulatory
[7ASR2d61] scheme. Simply stated, it is essential that the
state tort be either unrelated to employment discrimination
or a function of the particularly abusive manner in which
the discrimination is accomplished or threatened rather than
a function of the actual or threatened discrimination itself.

Although the Court's statement in Farmer was not technically necessary to its holding, it is a statement too strong and clear to ignore. We recognize the logistical and financial difficulties that the assertion of jurisdiction over American Samoa must occasion for this plaintiff and others. If the NLRB were sitting in Pago Pago rather than in San Francisco, however, nobody would even think about bringing a complaint like this one in the High Court. Employment discrimination on account of union activity is perhaps the single most obvious example of conduct committed to the regulatory authority of the NLRB. We are therefore precluded from sitting in judgment of such conduct.

The judgment of the Trial Division is AFFIRMED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Sesepasara; Roberts v.


MILANETA ROBERTS, Plaintiff

v.

HENRY SESEPASARA, NANCY FERRA,
and ESTATE of MOLITUI SEPETAIO, Defendants

High Court of American Samoa
Trial Division

CA No. 44-87

May 31, 1988

__________

Court should construe and enforce conveyance in accordance with the apparent intent of the conveyor despite technical flaws in the conveyancing documents.

Separation agreement, by which landowner agreed that another person could construct a building on her land which would remain legally separate from the land, did not convey to the building owner and his heirs and assigns a perpetual and irrevocable right to build, occupy, and rent out further structures on the land.

Separation agreement, by which landowner allowed another person to construct a building on her individually owned land, may be evidence of the conveyance of some right to remain on the land other than a license revocable at will by the landowner.

Land registered as the property of an individual rather than of a communal family does not become communal property merely because relatives of the owner have occupied it in accordance with customs governing communal property.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, John Ward

On Motion for Reconsideration of Order Denying Summary Judgment: [7ASR2d140]

For the purpose of this motion we construe the facts in the light most favorable to the plaintiff:

1) In 1955 the land "Lugavai " in the village of Pago Pago was registered as the individually owned land of Molitui Sepetaio.

2) At some time between 1955 and 1966 Mrs. Sepetaio moved to California to live with her dalghter Nancy Ferra, one of the defendants in this case. Relatives of Mrs. Sepetaio, including her brother T.S. Muasau, occupied Lugavai between the time she moved to California and her death in 1967, and may also have occupied it before she moved to California.

3) In 1966 a document purporting to be a lease of Lugavai was executed between the "Molitui family" as lessor and "Oka T.S. Muasau" as lessee. Oka T.S. Muasau was not only the lessee but also one of the signatories for the lessor. The other two were "Tumua T .S. Muasau" and Milaneta Roberts I plaintiff in this case.

4) In 1967 another document was executed, purporting to be a separation agreement for a building on Lugavai, which was represented therein as communal land of the Muasau family. T.S. Muasau signed both as the senior matai of the Muasau family and as the owner of the building.

5) A building was then built on Lugavai. This building was originally used as a residence by T.S. Muasau.

6) The document was later signed (we assume for the purpose of this motion) by Molitui Sepetaio.

6) In 1972 a document was executed purporting to convey the building from T.S. Muasau to plaintiff Roberts and her husband.

7) In 1978 the estate of Molitui Sepetaio was opened, apparently as part of an effort by defendant Ferra to lay claim to Lugavai and to the building on it. Plaintiff Roberts and others filed a claim on the building. PR No. 9-78.

8) At least since the issue was contested in the probate case during 1979, each side in this[7ASR2d141] dispute has known that the other claims the right to occupy the building and denies that the opposing side has any such right.

9) At some time during the 1980s plaintiff caused the building to be renovated. Although some repairs may have been necessary, it is undisputed that the building is no longer used as a residence and that the renovations were at least partly designed to make the building more suitable for commercial rental.

On these facts we conclude that the building is the property of plaintiff Roberts (and, on the state of the present record, of her unnamed husband). The best evidence on the current record is that Mrs. Sepetaio signed the 1967 separation agreement in order to allow Mr. Muasau to build his own house on her land, and that Mr. Muasau intended in 1972 to convey whatever interest he had in the house. Defendants are correct in observing that there were technical flaws in these documents: the separation agreement purported to describe Lugavai as communal rather than individual land, and the 1972 conveyance referred back to the legally irrelevant 1966 lease rather than to the separation agreement. These flaws, however, are insufficient to invalidate the conveyances or to cause the Court to construe them other than in accordance with the apparent intentions of the conveyors.

On reflection, however, we also conclude that the separation agreement did not convey to T.S. Muasau and his heirs or assigns a perpetual and irrevocable right to build, occupy, and rent out whatever structures they might choose. We decline to rule, as defendants seem to urge, that a separation agreement involving individually owned land can never be evidence of anything other than a license revocable at will. We also decline, however, to accept plaintiff's contention that the Court should treat land as communal even though it has been registered as individual, provided only that it has been "occupied communally." Even if plaintiff could prove at trial that various relatives of Mrs. Sepetaio had occupied the land before and after its registration as her individually owned land, a holding that the land should treated for all practical purposes as the communal land of the Muasau family would be tantamount to calling the registration statute a liar to its face.[7ASR2d142]

Such a holding would be particularly ironic in light of the fact that the land has in any case not been treated very communally in recent years: Mr. Muasau conveyed the building on it to his own daughter, who has moved to the United States and rented the building out as a commercial structure. Assuming for the sake of argument that we might conclude at trial that the separation agreement together with surrounding circumstances was evidence of a conveyance by Mrs. Sepetaio of a license that was not revocable at will for her brother to live on the land, the license surely lapsed when his assigns began renting the building out as a commercial structure.

Accordingly, we hold that the estate of Molitui Sepetaio has the right to reoccupy the land, including the right to order the removal of the building. We cannot decide on the present record whether the equities of the case are such as to require that plaintiff be given an option of removing the building or receiving from the estate some compensation for its value. In the event the parties cannot reach a settlement on this issue, either party may move for a further hearing.

The motion for reconsideration is therefore granted. Defendants' motion for summary judgment is granted in part and denied in part, in accordance with the above opinion.

It is so ordered.

**********

Samoa Roofing and Siding, Inc.; R.P. Porter Int’l, Inc. v.


R.P. PORTER INTERNATIONAL, Inc., Plaintiff

v.

SAMOA ROOFING & SIDING, Inc., Defendant

High Court of American Samoa
Trial Division

CA No. 160-87

February 10, 1988

__________

Where buyer routinely accepted deliveries of merchandise after notice of higher price than seller had previously offered in connection with another transaction, made payments on account, and did not question the price until after seller had filed suit, buyer had accepted the higher price.

Where contractor and subcontractor had not agreed on a price for performance of subcontract, and contractor protested immediately upon receipt of a bill from subcontractor, the subcontractor was entitled to the fair value of the work.

In assessing fair value of work performed by subcontractor, court should exclude amounts billed for materials in excess of those necessary to do the work, for tools and other capital expenditures, for labor costs that did not reflect actual payment to specific workers, and for an unexplained "contingency factor. "

Plaintiff's claim for exemplary damages against defendant who allegedly stopped payment on checks as part of a scheme to defraud plaintiff was not supported by the evidence when (1) a letter from the bank indicated that the checks had been dishonored because of insufficient funds and (2) plaintiff had failed to subpoena bank officials or records in support of its contention that defendant had stopped payment.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Defendant, Roy J.D. Hall, Jr. [7ASR2d55]

Plaintiff, inter alia, is a supplier of building material and provides equipment for hire to contractors. Defendant is a contractor and was for some time in good standing with plaintiff who afforded defendant an open account facility to charge the purchase of material and the rental of equipment.

At a certain point in time, plaintiff notifies defendant about the account exceeding acceptable credit level and warned defendant that credit would be withheld if payment was not made. Defendant tenders first a check of $7,000.00 and a week later, a further check for $3,000.00. Both checks were drawn on Amerika Samoa Bank, who returned the checks unpaid. After a number of unsuccessful presentment attempts by plaintiff, this action was filed.

Plaintiff's accounting presented to the Court shows an indebtedness of defendant incurred during the month of September 1987 and the first day of October, 1987, to be in the amount $13,419.02.

Defendant contests this asserted liability on two grounds. First defendant complains about an overcharge by plaintiff for ready mixed cement as exceeding firm quotations said to have been supplied by plaintiff to defendant.

We find no merit in this argument which appears to us to be no more than an after-thought to suit. The quotations pointed to by defendant pertained to a specific job at a specific work site in Nu'uuli. According to plaintiff, his charge for ready mix varied with location, and the quote referenced represents his charge for delivery to sites within the immediate location of his plant. At the same time, defendant routinely accepted the September deliveries to his work site in Atu'u, at the rate now complained of, without prior complaint. Finally, the tender by defendant of the checks for payment on account implies acceptance of the account, including the ready mix cement rate.

Defendant further counterclaims an offset for the value of certain subcontracting work rendered by defendant on behalf of plaintiff. [7ASR2d56]

Offset value claimed is $9,200.00" prepared by and testified to by defendant's accountant" It became very clear on the evidence that the offset accounting presented to the court for consideration did not reflect actual value of the subcontracting work, but demonstrated an exercise to inflate and maximize an offset in retrospect. Defendant's credibility was far from impressive.

The subcontracting work in issue involved the waterproofing of three elevation shafts. The work required the application of some emulsion and fabric and plaintiff testified that in costing his bid for the main contract, he had allowed approximately $3,000.00 for the waterproofing work. The supervising engineer at the work site had recommended defendant for the work. Despite plaintiff's repeated efforts to obtain a quote from defendant, the latter kept putting the matter off. A billing for $9,208.00 was finally submitted to plaintiff in early November, 1987, while the work, according to plaintiff, remained to be satisfactorily completed. Upon receipt of the bill plaintiff immediately objected and asked defendant for a break down while submitting his own comparative analysis of the man hours, material and mark up for the waterproofing involved. Plaintiff's calculation amounted to $2,300.00.

In reviewing the break down submitted by defendant to the Court, we find that given the area of the three shafts and area of each roll of fabric, the defendant was attempting to charge the project some five times the amount of material needed to apply the shafts with 3 layers of the fabric.

We also find the contingency factor provided in the sum of $2,462.92 as completely unintelligible on testimony given. The accountant alluded to the cost of tools for the job, and when asked about whether it was a normal bidding practice to include capital costs, the witness talked of paint brushes, extension cords (since they worked at night) and even gasoline costs for transporting labor to sites. The witness was far from being self assured in pinning down and properly explaining this contingency factor.

Also on labor costs, an additional item of $925 is added and when questioned on this item, the witness went on to talk about "supervision" costs. [7ASR2d57]

The court is unable on the above to conclude that the billing reasonably reflects a bidding exercise which would approximate reasonable value for the subcontract. To the contrary, the billing is seen as no more than a sorry attempt to provide a breakdown to an over-inflated statement for services.

On the other hand, we find the costing analysis submitted by plaintiff to be more realistic, given plaintiff's bid reservation, and our review of the supplier's actual invoices for the materials sold to the defendant.

We conclude that the sum of $2,330.00 may be properly applied as an offset in defendant's favor.

Plaintiff further seeks exemplary damages on the allegation that defendant had tendered checks for payment on account in order to continue to procure credit. That while so obtaining the benefit of that credit, defendant had instructed his bank to put a stop payment on these checks.

We find the evidence insufficient to establish this claim. While plaintiff had testified that he only received verbal advisement from the bank of a stop payment order, a letter from the bank admitted into evidence cited "insufficient funds" for dishonoring the checks. No other evidence was presented. If a stop payment order was indeed initially given by defendant, the Court feels that this fact could have been open to better proofs given the ready availability of the bank, its officers and records to subpoena.

On the record before us, the Court finds in accordance with the bank's referenced letter of explanation, that the checks in question were returned by the bank for insufficient funds. These circumstances do not warrant exemplary damages.

CONCLUSION

On the foregoing, it is the conclusion of the Court that defendant is indebted to plaintiff in the amount of $13,419.02 to be offset by the amount of $2,300.00. Judgment will accordingly enter in favor of plaintiff, R.P. Porter International, Inc., against defendant, Samoa Siding & Roofing, Inc., in the sum $11,119.02 with interest presumed [7ASR2d58] from October 1, 1987 at the rate of 6% to the date of entry hereof. Plaintiff will further have post judgment interest at the rate of 6% until judgment is satisfied.

It is so ORDERED.

**********

Tufele v. Mose;


TUFELE LI'A, Plaintiff

v.

JOHN MOSE and ALESENE MOSE, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 31-85

June 27, 1988

__________

Dower rights do not exist in Samoan communal lands. A.S.C.A. § 40.0106.

A person who has married into a Samoan family ordinarily has no say with regard to that family's communal property.

Common law rule against perpetuities is designed to protect the free alienability of land and therefore has no application to Samoan communal property, which is not freely alienable. A.S.C.A. § 37.0204.

Warranty deed creating trust in land conveyed in favor of the people of the islands of Manu'a, naming a matai of Manu'a and the successors to his matai title as trustees, does not violate the rule against perpetuities.

Title to communal lands may pass from one family to another by conveyance or adverse possession.

Estate transferred by one Samoan communal family to another vests immediately in the transferee.

Possession of land was not adverse but permissive where, although defendant held possession for over 30 years on land held in trust for people of the islands of Manu'a, her land use permits were signed by third parties and she sought trustee's permission to repair buildings.

Language in warranty deed conveying land to a matai of the islands of Manu'a and to "his successors or assigns" in trust for the people of Manu'a causes the trusteeship to devolve upon the successive [7ASR2d158] holders of the matai title, not to the personal estate of the matai.

The rights of individual occupants of land held in trust for the people of Manu'a are no greater than those of others from Manu'a; occupants do not have right or power of appointment to pass their possessory rights to others.

When an occupant of land held in trust for the people of Manu'a voluntarily departs the land or abandons his possessory rights the land reverts to the trustee and the people of Manu'a.

When family member relinquishes possession of communal land, it reverts to the matai and family.

While family member may not have intended to relinquish possession of communal lands, the question whether relinquishment has occurred is one of fact.

No relinquishment of possession occurred where defendant vacated building for two years while deciding what new business to establish there, later established a business in the building, and during the same two year period occupied another building located on the same land.

Defendant's use of land held in trust for use and benefit of the people of Manu'a exceeded scope of trust where defendant held possessory interests in three buildings which were leased to commercial businesses, and the trustee had power to require defendant to surrender one of the business sites to establish an administrative office for the general use of the Manu'a District.

Before KRUSE, Associate Justice, TAUANU'u, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.
For Defendants, Togiola T.A. Tulafono

Plaintiff, Tufele Liamatua, is the current holder of the title "Tufele" pertaining to the village of Fitiuta, Manu'a. He claims, as successor to the title "Tufele", the trusteeship of land called "Atu'u" located in the Eastern District of Tutuila. This land was the subject of a conveyancing instrument (hereafter the "warranty [7ASR2d159] deed") entered into on November 25, 1911 between Mauga Moimoi and his wife (1) as grantors, and Tufele as...Trustee for the People of Manu'a" as grantee.

The warranty deed purports to convey a defined piece of property with the approval of the then Governor of American Samoa. It was duly accepted and registered in the Office of the Territorial Registrar. In form, therefore, the warranty deed is consistent with the requirements of the laws of the territory governing the alienation of communal lands. See A.S.C.A. § 37.0201 et. seq.

As trustee, plaintiff seeks the recovery or repossession of a certain part of Atu'u which is the location of a small building (said to be about half as large as the dimension of courtroom No.5) which is claimed by defendant Mrs. Alesene Mose.

Plaintiff's intention for this site is to construct a building to house an administrative office wherein matters concerning the land may be handled and which may serve as a form of headquarters where the Manu'a District can conduct its affairs in Tutuila. Plaintiff testified at the time of the filing of his complaint that the said building had been left vacant and neglected for some two (2) years prior; and that since defendant is in possession of two (2) other double storey buildings located elsewhere on the said lands, and is earning rental revenue from business tenants, the recovery of the site in question for general district use would work no great prejudice to the defendant.

Pending trial hereon, defendant has established a sewing and laundromat business in the building. [7ASR2d160]

The parties have different historical perspectives on the background of the land grant.

Plaintiff testified to the effect that the warranty deed formalized a written agreement of 1904 between the then Mauga and the then Tufele whereby the former had transferred the land Atu'u as a locality in Tutuila for the people of Manu'a to arrive and assemble at for conferences at a territorial level. At the time of the grant, the territorial topic for discussion in Tutuila was the "M'au."

Notwithstanding the warranty deed, defendant, a long standing resident of the area Atu'u, testified that the grant came about consequent to negotiations between Mauga and Tui Manu'a Elisara. Accordingly it is defendant's position that the Tufele had no special say in the matter concerning the lands. As evidence hereof, the defendant alluded to prior instances when building permits and the like were executed not by a Tufele but by a succession of Manu'a District Governors, and then later by a land committee appointed by the District Council of Manu'a.

While we accept as fact that there was a period of time when District Governors and a land committee had executed various government permit applications with regard to land use, we are unable to accept this fact as proving defendant's contention. Rather, the more plausible explanation was given by plaintiff that the involvement of the District Governors and the land committee came into being while the Tufele title was vacant. That indeed when the present holder took the title Tufele he was ignorant of the existence of the warranty deed until the matter was raised with him by the Office of the Attorney General in 1974, and that his only prior knowledge of the matter was that the former Tufele acted as caretaker to the land when the same in earlier times housed a few people including certain government quarters. That since being apprised of the deed, plaintiff has actively assumed the functions of trustee as therein provided.

We find that the warranty deed itself is the best evidence of the conveyancing transaction between Mauga and the people of Manu'a, and that it gives Tufele the power to act as trustee. [7ASR2d161]

Defendant in addition offers alternative theories in derogation of the trust and accordingly against plaintiff's claims to trusteeship. The more extreme of these is an argument that the warranty deed itself is void because it offends the common law rule against perpetuities. It is said that the trust established by the warranty deed is perpetual in effect because it may not vest within the appropriate limitation of a life in being plus 21 years.

The logical conclusion to this argument is the destruction not only of the trust conveyance but indeed of the very estate upon which defendant's possessory rights to the land first came into being.

As it happens, we disagree with defendant. The policy reasons behind the rule against perpetuities have no relevant application to communal lands. As alluded to by defendant. the rule is grounded on public policy which disapproves the imposition of any fetters against the free alienability of estates. Nothing could be more incongruous with the notion of communal lands than a doctrine that is a product of economic policy favoring the free marketability of property. Communal lands are not freely alienable on the market. A.S.C.A. § 37.0204.

Even if the rule against perpetuities were applied, however, it would not invalidate the deed. Technically the rule is one against the remoteness of vesting of an estate or interest beyond the period of limitations settled by law. If we look to realities, the ownership of communal lands is in fact in that traditionally cognizable entity the "aiga" or extended family. See, e.g., Tuana'itau v. Pagofie, 4 A.S.R. 375, 381 (1963); Magalei v. Siufanua, 4 A.S.R. 101, 101 (1973); Fairholt v. Aulaya, 1 A.S.R.2d 73, 78 (1983). The reports are also replete with cases which talk about "title" to land being acquired by Samoans through first occupancy and a claim to ownership. And it has also been early recognized that "title" may pass from one family to another through the latter's long term and adverse use. Avegalio v. Suafo'a, 1 A.S.R. 475 (1933); Ilaoa v. Toilolo, 1 A.S.R. 602 ( 1937). Additionally "title" may also pass through conveyance by the matai with the consent of the [7ASR2d162] family, (2) and in accordance with the requirements of certain statutory provisions. (3)

Therefore the notion of vesting of title in a communal entity has long been established law in the territory and it follows that a communal estate donated by one communal entity to another communal entity must necessarily vest immediately. To argue otherwise is to dally with artifice.

We see no legally significant distinction between a simple inter-family conveyancing, and a transaction between a single family and a group of families wherein the latter is represented by a matai appointed by the donor to assume the fiduciary role that would otherwise belong to the sato or senior matai of a given family. The Samoan realities remain the same, and we find no statutory or applicable common law rule to the contrary.

Defendant alternatively claims title in the land through adverse possession in excess of thirty years. We find no merit in this claim. Her coming to possession was certainly not adverse but permissive.

She claims to have lived on the land for 40 years. She descends from Manuan parents and first went upon the land in her youth and lived with relatives who also originated from Manu'a, a Leasau and his wife Toliu. After living 10 years with the latter she married John Mose whose family were also people from Manuta and who were also living on Atutu. After marriage she moved in with her in-laws. It was some time subsequent to this that she and her husband built the building in question. Throughout this time, defendant was familiar with the fact that land use permits were signed by third parties and indeed even she herself sought Tufele's permission on a building permit application to repair the structure in question as well as the structure belonging to Leasau and Toliu after the latter had departed the land. [7ASR2d163]

Finally, defendant contends that the warranty deed does not provide for plaintiff Tufele's claim to be trustee. Defendant contends that the language "successors and assigns" contained in the warranty deed is restricted only to those qualified to take in the late Tufele's personal estate. We disagree. In looking to the tenor of the document there is really no intention to create some sort of individual interest that would devolve upon the late Tufele's personal estate. The whole intention of the document is to divest from Mauga the land "Atu'u" for the benefit of a group of people and nothing more. Tufele's significance reflects no more than conspicuous protocol. One ranking matai is dealing with another ranking matai on behalf of their respective communities, and this is exactly what the warranty deed reflects. The then Tufele's trust capacity reflects no more than the usual customary land setting with matai control. It is inconceivable that Mauga had any intention of possibly placing this matai control in an untitled person as defendant's interpretation of the instrument would allow. It is just as inconceivable from the grantees' point of view that their possessory rights to Atu'u under the instrument could be subject to the control of an untitled heir of the late Tufele. Defendant's suggestion just does not fit the Samoan context--- even less so in 1911 when the matai influence was much more pervasive.

In our opinion, the sensible effect to be given to the purposes of the warranty deed is that successive holders of the title "Tufele" are the qualified trustees, as opposed to the lineal line of the late Tufele as suggested by defendant. (Certainly, practice did not bear out this contention in the way of exercising control over the land with land use permits.) Finally, the last paragraph of the warranty deed reads in part:

To have and to hold.... unto the said party of the second part [Tufele],
his successors or assignees, IN TRUST for the USE and BENEFIT
of the People of MANU'a". (Emphasis in the original.)

There is no hint of private devolvement in this language and we believe that the draughtsman was purposeful because in contradistinction the succeeding sentence referencing a quiet enjoyment [7ASR2d164] covenant on the part of the grantor speaks in terms of Mauga, his wife and "their heirs".

Having thus sustained the warranty deed as evidencing the conveyancing transaction as well as being the basis for plaintiff's claims to trusteeship, we consider the issue of whether plaintiff may retake possession of the land area in question, under the circumstances.

The most glaring intent of the conveyance is that the subject land would be held for the "use and benefit of the People of Manuta". For practical reasons, possessory rights would be subject to the physical limitations of the land area, but beyond that the rights of actual occupants found on the land are no more than those of others from Manuta. We thus reject any suggestion of any special individual entitlement, with defendant's contention that those on the land for any given period of time have the right (or a power of appointment) to pass on their possessory rights to others of their choosing. (4) This contention is repugnant to the intent of the warranty deed and the language therein used to establish the donee class "the People of Manuta". It is also repugnant to the very clear purpose in the warranty deed to provide for a "trustee". [7ASR2d165]

To the contrary we hold that the logical consequence of the natural application of the warranty deed's intent is that an occupant who voluntarily departs the land or abandons his possessory rights, does so in favor of the trustee and the People of Manu'a. (5) Besides arriving at this conclusion through construction of the warranty deed, we find analogous precedent in the normal family land arrangements wherein the Court has held that when a family member has relinquished his possession of communal land it reverts to the matai and family. Talagu v. Te'o, 4 A.S.R. 121 (1974). It was further held in this case that while a family member's intentions may not have been to abandon the land, the issue of whether relinquishment has arisen and the matai has effectively taken over to the exclusion of the family member is one of fact" Id. at 125.

As noted above, plaintiff testified that the building in question had been left neglected and in disrepair for some two (2) years prior to the filing of his complaint. He therefore approached defendant to release the site for district use. In plaintiff's view this request was reasonable by virtue of the fact that defendant had now come into full use of another two storey building vacated by the aforementioned Leasau and Toliu; and that when this building was vacated, plaintiff had decided to convert it to district use but was beseeched by defendant to allow her to take over and remodel the building and that the first floor would be made available for district use. Plaintiff acquiesced and by reason thereof was the subject of complaints about favoritism from other land occupants. As events turned out the first floor of this building is now occupied by a business tenant of defendant.

Since the filing of this matter, however, defendant has established a laundromat and sewing business in the building at issue. [7ASR2d166]

In response, defendant denies that she had ever abandoned the premises. She claims that the building was only left vacant while she was deciding what sort of business to set up therein. She formerly operated a store there but did not want to go back into that line of business because of the way competition had developed.

In the circumstances, we find relinquishment or abandonment not to be readily observable. Had defendant actually departed the land altogether then a case of abandonment might be easier made. However, on the facts as we have them it may not be said with any measure of confidence that defendant's actions or omissions are entirely inconsistent with her retaining possession of the premises and land.

On the other hand we find and uphold, in the circumstances, appropriate authority in the plaintiff Tufele to require of defendant to yield and surrender the site in question as consistent with his trust and duties reposed by the warranty deed. As we have noted, the deed's very clear purpose was to provide a land si te for the "use and benefit of the People of Manu'a". Just as clear, therefore, is the scope of the trust with which Tufele is charged and that is to secure the site for this general purpose. Now it can hardly be said that the fullest expression of this purpose equates with a handful of individuals accumulating land sites for purely business purposes. While this is not to say that a business use is necessarily not a permitted use under the terms of the grant, it is hard to see how the current si tua.t,ion accrues to the "benefi t of the People of Manu'a."

In conclusion, we find that the following circumstances have arisen: The building site in question was defendant's original business site. She subsequently came into possession of another site which located a two (2) storey structure and which has also become a leasehold business site. Subsequently she further came into possession of Leasau and Toliu's site, which also contained another two (2) storey structure, but on the understanding given to plaintiff Tufele that the first floor thereof would be remodelled by defendant for general district use. This use did not materialize because defendant brought in another business tenant. We. hold in these [7ASR2d167] circumstances that defendant's present possessory interests have exceeded the ambit of the grant and accordingly find it within plaintiff's charge under the warranty deed to demand and make available one of those business sites for general district use. The plaintiff trustee's choice of the site in question is upheld as the more reasonable and in order to mitigate any immediate prejudice to defendant by reason of having to relocate or reallocate her business interests, it is the opinion of the Court that defendant have thirty (30) days from date hereof to remove her belongings or suffer the same to be made available for general district use at the trustee's discretion.

Judgment is entered in accordance with the above findings and conclusions. It is so ORDERED.

**********

1. Mrs. Mauga's significance as a grantor appearing in the deed is probably nothing more than naivete on the part of the draughtsman who was obviously meticulous with considering matters of dower. In custom, as well as in law since developed, a person married into a family has no say with regard to that family's lands. Dower rights are non- existent in the communal land context. A.S.C.A. § 40.0106. See also Reid v. Puailoa, 1 A.S.R.2d 85 (1983).

2. See e.g., Satele v. Afoa, 1 A.S.R. 424 (1930), Mauga v. Soliai, 3 A.S.R. 108 (1954).

3. A.S.C.A. §§ 37.0201 et seq.

4. The self serving nature of this argument is best explained by the fact that the locality also contains the territory's two largest private sector employers the canneries. They provide a captive market with their numerous employees for a number of food and retail outlets that have spawned in the area and thus rental revenue attractive to building owners. Accordingly the more buildings that an individual can maintain on the land the better. Indeed the economics of the area have given rise to the fact that certain occupants are actually leasing building space to other Manuans themselves and the evidence also suggested to non-Manuan business tenants as well. This development is hardly consistent with the obvious intent of the deed that the land be held for the benefit and use of the Manuan community.

5. This expectation is indeed borne out in actuality. Plaintiff testified that he is continuously receiving applications from otherwise qualified individuals from Manu'a for space within Atu'u.

Togotogo; Sotoa v.


SOTOA S. SAVALI, Plaintiff

v.

TOGOTOGO LEATUAINA and SINAPATI
LEIFITELE SOTOA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 8-88

__________

Hardship is one factor determining whether injunction.

the court must consider in to issue a preliminary

Preliminary injunction restraining defendants from further construction on specified lands until land use and building permit applications are approved by plaintiff was appropriate where (1) the plaintiff objected to the construction only because the defendants had undermined his authority as senior matai by holding themselves out on the permits as owners of the land; (2) plaintiff's claim was supported by the preponderance of the evidence at the preliminary hearing; and (3) the injunction would not cause hardship to defendants by preventing their construction, since plaintiff had given his word that he would approve the permits if they were submitted to him.

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Tau'ese P. Sunia
For Defendants, Charles Ala'ilima

PRELIMINARY INJUNCTION

The defendants, Togotogo Leatuaina, Sinapati Leifitele Sotoa, and each of them, their respective aiga, agents, servants, attorneys and all those in active concert with them are hereby enjoined and restrained from any further building, construction or erection of structures upon lands "Masina " located in Tau, American Samoa, pursuant to [7ASR2d94] Government of American Samoa Coastal Management Program, Development Planning Office Land Use & Building Permit Applications Nos. T9637-A dated 11/12/87; and T9614-A dated 11/24/87, for "FEMA" housing assistance, unless and until such Land Use & Building Permit Applications, or any succeeding applications therefor, have also been approved in writing by plaintiff Sotoa Savali or further Order of Court.

DISCUSSION

Our reasons for the foregoing are as follows: this dispute would be non-existent had the building permits referenced been routed to plaintiff Sotoa for written approval. The plaintiff's position is that he has no objections to the proposed respective building by the defendants. He does object to what he regards as defendants' attempts to undermine the "pule" of the senior matai to the building sites (parts of land "Masina" said to be the communal property of the Sotoa family) by their respective holding out in the said building permits as variously the owners of the land sites.

Defendant Sinapati Sotoa has avoided confronting these claims at this time by offering to desist from any further building and hence submit himself to a restraining order prayed for, while defendant Togotogo Leatuaina has countered wi th the claim that those parts of "Masina " incorporating his building site are in fact the communal property of the Togotogo family.

We are not convinced, for the limited purposes of this hearing, that the evidence preponderates in favor of Togotogo. We are mindful nonetheless of that competing factor requiring our consideration, namely, "hardship", and the possibility that defendants may lose their opportunities to participate in federal emergency housing aid because of the interval pending final disposition hereof. Accordingly it is the Court's sentiment to maintain the status quo by holding plaintiff to his word of approval and offering defendants the option of participating in federal aid by submitting their respective Land Use & Building Permit applications to plaintiff's approval.

It is so ORDERED.

**********

Tifaimoana; Manufacturer's Hanover Trust Co. v.


MANUFACTURERS HANOVER TRUST Co.,
as Collateral Trustee and Agent, Plaintiff

v.

M/V TIFAIMOANA, Official No.610466, Its Masts,
Boats, Anchors, Cables, Chains, Rigging, Tackle,
Furniture, Engines, Equipment, and all Other
Necessaries Appertaining Thereto, Defendants

High Court of American Samoa
Trial Division

CA No. 113-85

March 11, 1988

__________

After a final judgment, rule of res judicata bars relitigation by the parties of questions raised by the pleadings or of related questions that might have been raised and thus ordinarily precludes court from reopening the proceeding in order to consider evidence and arguments for a reduction or increase in the amount of the judgment.

A plaintiff who moves for summary judgment in an amount smaller than the amount he sought in his complaint, although he was legally entitled to judgment for the entire amount, thereby surrenders the right to further relief unless the caption or the text of the motion states or clearly implies that it seeks only a partial summary judgment.

Where complaint set forth a single obligation and in a single paragraph demanded the entire principal plus interest and expenses, and where court subsequently granted summary judgment for an amount smaller than the amount demanded in the complaint, the court should not later subdivide the demand into separate claims in order to construe the judgment as having only partly disposed of the case. [7ASR2d85]

Rule requiring that trial judge examine pleadings and evidence to determine what material facts remain in dispute after granting motion for partial summary judgment applies only when judgment is not rendered upon whole case or for all relief requested. T.C.R.C.P. 56(d).

Although plaintiff who moved for summary judgment may have had subjective intent to seek additional amounts owed it, court will not construe judgment as only a partial summary judgment unless record contains objective indicia such that reasonable person could believe plaintiff had asked court to resolve only some issues but not others.

Circumstances constitute "other reason justifying relief from operation of judgment" where (1) plaintiff had demanded and was owed an amount in excess of $15 million; (2) court granted summary judgment for $5 million against vessel at a time when the vessel could not have been sold for more than $5 million; (3) at time of motion for relief from judgment the vessel had not yet been sold to satisfy the judgment, but could be sold for more than $10 million; (4) judgment was in rem against the vessel only; (5) the owners of the vessel were not sued personally and did not appear in the action; (6) the owners had borrowed $11 million from plaintiff and had made no payments; and (7) the owners would therefore receive a windfall of several million dollars if the vessel were sold for over $10 million and the plaintiff limited to recovery of the prior $5 million judgment. T.C.R.C.P. 60(b).

Before REES, Chief Justice.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.

On Rehearing of Second Motion for Summary Judgment:

Manufacturers Hanover Bank brought this in rem action in 1985, seeking to foreclose its ship mortgage. The mortgage secured a debt whose principal amount was claimed to exceed $11,000,000. Neither the owners of the vessel nor any other interested party appeared in the action, and in February of 1986 the Court granted summary judgment. The judgment was in the amount of [7ASR2d86] $4,880,461.14, the amount Manufacturers Hanover proved by affidavit accompanying its motion for summary judgment. The ship has since remained under arrest by the High Court pending an anticipated sale to satisfy the judgment.

On December 22, 1987, Manufacturers Hanover filed another motion also styled a "motion for summary judgment." An accompanying memorandum explained that at the time of the first motion "plaintiff was not in a position to accelerate the amounts due under the mortgage" and therefore sought only about $5 million rather than the entire $11 million debt; the second motion for summary judgment "merely seeks to update" the $5 million judgment by seeking a new judgment in excess of $17 million.

After a hearing on the second motion for summary judgment the Court declined to rule until plaintiff had given notice to all known interested parties. The Court suggested that plaintiff set the motion for rehearing after such notice was given and be prepared (1) to prove with specificity that all amounts now sought were among those requested in the complaint; and (2) to persuade the Court that the original contract debt was not merged into the 1985 judgment, barring further recovery. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 18 (1988) (Opinion and Order on Second Motion for Summary Judgment, issued January 19, 1988).

On rehearing plaintiff has satisfied the Court that the complaint comprehended a demand for $10,738.848 in unpaid principal and (assuming that contractual interest has continued to accrue notwithstanding the entry of the 1986 judgment) $4,455,162 in accrued interest to February 8, 1988.

The other question is far more difficult. According to the rule of res judicata a final judgment (that is, any judgment that is not appealed or that is upheld on appeal) precludes relitigation among the parties of any question raised by the pleadings or indeed of any related question that might have been raised. Such a judgment is a bar not only to suits by unsuccessful litigants to undo judgments against them, but also to efforts by successful litigants to recover more than they were awarded. [7ASR2d87]

Manufacturers Hanover urges the Court to construe the 1986 judgment as a "partial" one resolving some issues but not others. Counsel cites one case in which a court so construed an earlier judgment despite the reference of the judgment itself and of the underlying motion to "summary judgment" rather than "partial summary judgment." Teamsters Pension Trust Fund of Philadelphia and Vicinity v. John Tinnev Delivery Service. Inc., 732 F.2d 319 (3d Cir. 1984). That case, however, relied heavily on the fact that. the complaint had sought several clearly distinct forms of relief under several separate contracts, whereas the motion for summary judgment. had requested judgment only for damages on only some of the contracts. Even on its narrow facts the Teamsters case seems at odds with the principle of repose that gives rise to the rule of res judicata, since the court conceded that the judgment looked to the naked eye as though it had disposed of the whole lawsuit. 732 F.2d at 325. In the case before us there was a single obligation and a single paragraph in the complaint demanding the entire principal amount plus interest and expenses. We decline plaintiff's invitation to assimilate this case to Teamsters by subdividing the principal and interest. into separate claims for each date on which payments would have come due if there had been no default. Plaintiff had the contractual right to take judgment in 1985 for the entire principal amount, accrued interest and expenses, and post-judgment interest and expenses. Its decision to take a smaller judgment, at least in the absence of any clear implication to the contrary in the caption or the text of its motion for summary judgment and accompanying memoranda, was a surrender of the right to take more. (1) See [7ASR2d88] Diaz v. Indian Head. Inc., 686 F.2d 558 (7th Cir. 1982); Gasbarra v. Park-Ohio Industries Inc., 655 F.2d 119 (7th Cir. 1981), and authorities cited therein.

The decision by Manufacturers Hanover to seek a smaller judgment than that to which it was entitled was taken for tax reasons. The price of tuna fish, and consequently of tuna boats, had declined drastically. In early 1986 it appeared unlikely that a judicial sale of the vessel would bring anything like the $11 million principal amount of the mortgage. (To the extent that a court sitting in the defaulted purse-seiner capital of the world cannot take judicial notice of this fact, it appears between the lines in plaintiff's affidavits.) Taking into account the anticipated tax treatment of a $5 million judgment and of an $11 million judgment on which no more than $5 million was likely to be collected, plaintiffs deemed the former more valuable than the latter. Since then at least two important things have happened: the market value of tuna and of tuna boats has increased substantially and the tax laws have changed, Since the tax considerations that motivated plaintiff's earlier decision are acknowledged but not identified, we cannot tell whether the decision to seek a larger judgment now was motivated by one of these changes, by both of them, or by other factors as well. (2) What is clear [7ASR2d89] is that in 1988 a $17 million judgment on a vessel that may sell for more than $10 million is worth more than a $5 million judgment. This, however, is not a basis on which we can construe the earlier judgment as only a partial one.

These factors, however, together with other equitable considerations urged by plaintiff, do amount to a basis on which the Court can grant relief under T.C.R.C.P. Rule 60(b). As plaintiff points out, the judgment is only against the vessel. Neither the owners of the vessel nor any other human beings were sued or appeared in the case to assert their rights. Moreover, the plaintiffs actually did lend the $11 million, and the owners borrowed it but never paid it back. A holding that when the ship is sold the plaintiff will receive only the amount of its 1986 judgment plus post-judgment interest and expenses will probably mean that the remainder ---which could be several million dollars will revert to the owners, free and clear of any obligation to repay the $11 million they borrowed or any of the interest on it.

In a case in which the owners had been sued in personam, or in which they had personally appeared to assert their rights, these factors might be outweighed by the principle of repose. Litigation is an unpleasant experience; although there is no constitutional right to be free from double jeopardy in civil cases, the rule of res judicata serves much the same purpose. Moreover, a person who has been sued and who has had a judgment entered against him is likely to base subsequent actions on the settled expectation that there will be no further judgment. In contrast, the owners of the Tifaimoana have not been sued, have not had to pay anything since their default, and have not asserted their right to receive any money from the sale of the vessel. The only defendant ever [7ASR2d90] required to appear in this litigation, the Tifaimoana itself, has been resting peacefully throughout the ordeal. While we believe that plaintiff implicitly waived any absolute right to receive the full amount owing under the contract, the owners' nonappearance constituted a far more explicit waiver. A judgment benefitting them would constitute a far more egregious windfall than that which will be afforded to plaintiffs if the relief they seek is granted. Accordingly, we hold that the unique circumstances of this case comprise an "other reason justifying relief from the operation of the judgment" under Rule 60(b).

The second motion for summary judgment is construed as requesting relief from the operation of the judgment and is granted as such. Judgment shall issue for the plaintiff in the amount requested, minus the "penalty interest" for which the court can ascertain, on the present record, no contractual basis. Plaintiff shall make diligent efforts to serve a copy of this judgment immediately on each person known to have had an ownership interest in the vessel prior to the foreclosure of the mortgage.

It is so ordered.

**********

1. We respectfully disagree with the Teamsters court's reliance on Rule 56(d), which requires that the trial judge examine the pleadings and evidence to determine what material facts remain in dispute after a motion for partial summary judgment has been granted. The rule applies only when "judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary." To cite it as authority for the proposition that a particular judgment did or did not resolve the whole case amounts to circular reasoning.

2. One of plaintiff's counsel has filed an affidavit to the effect that after the motion for summary judgment "the matter was then allowed to remain pending while additional amounts accrued. By leaving the matter pending, it was always plaintiff's intention to seek additional amounts due if market conditions warranted...." The Court is willing to believe that plaintiff subjectively intended to seek additional amounts "if market conditions warranted," at least in the sense that everyone wishes to keep his options open. We have scanned the record in vain, however, for any objective indicia that would have led a reasonable person to believe in 1986 that plaintiff wished the Court to resolve only some issues but not others. The case was left "pending" only in the sense that the ship was not sold. In that sense every case in which there is any possible need for post-judgment relief (i.e., nearly every case) is "pending" even after judgment. Until its second motion for summary judgment plaintiff never notified the Court that it regarded the matter as "pending" in any other sense; the clerk therefore quite reasonably made the notation "Closed 9/22/86," and the case was treated by the High Court as a closed case until the recent motion.

Tifaimoana; Manufacturer's Hanover Trust Co. v.


MANUFACTURERS HANOVER TRUST Co., as Collateral
Trustee and Agent; Plaintiff

v.

M/V TIFAIMOANA, Official No. 610466, Its Masts,
Boats, Anchors, Cables, Chains, Rigging, Tackle,
Furniture, Engines, Equipment, and all Other
Necessaries Appertaining Thereto, Defendants

High Court of American Samoa
Trial Division

CA No. 113-85

January 19, 1988

__________

Notice of second motion for summary judgment, which if granted would increase judgment debt from $5 [7ASR2d19] interested parties who received prior notice that sale of vessel was to be made to satisfy the original $5 million judgment, even though action was in rem against the vessel and interested parties had not intervened, since they might have relied to their detriment on the earlier notice.

Second motion for summary judgment, which if granted would increase judgment debt from $5 million to $17 million, raises questions (1) whether the proposed relief was requested in the pleadings and (2) whether contract debt was merged into the prior judgment, precluding further relief in excess of judgment amount.

Before REES, Chief Justice.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.

On Second Motion for Summary Judgment:

This motion, styled a .'motion for summary judgment," appears to be in the nature of a motion for an amendment to the judgment awarded on February 21, 1986.

The existing judgment is for $4,880,461.14 plus interest from December 31, 1985 at the rate of 11.8%.

The judgment now requested would be for an amount in excess of $17,059,926.82.

Although the Court is not entirely sure it understands all the reasons for the difference between these two amounts, or why the plaintiff chose to proceed by motion for summary judgment rather than by motion for an amended judgment, the nub of the issue seems to be that "the plaintiff is now in a position to accelerate the amounts that would otherwise become due in the future so that the sale can go forward on a basis that will discharge all the debt secured by the mortgage." It has not been established to the satisfaction of the Court, however, that this relief was requested in the Complaint in Rem, Even on the assumption that this item was comprehended either in the general prayer for "a sum , not less than $11,072,000" or within the other requested items (interest, certain expenses advanced by plaintiff, [7ASR2d20] costs, and attorney fees), we are left with the question whether the contract debt was merged into the 1985 judgment. If so, the debt is now defined by the terms of the judgment rather than by those of the contract, and the only amounts that have come due since the date of judgment are for post-judgment interest.

We need not reach this question at this time, however, since no notice of the motion now before us was given to any interested party. It is arguable, as plaintiff contends, that when an action is in rem and there are no intervenors no party need be notified even of an extraordinary motion such as this one. We note, however, that during October 1987 a number of interested parties were served with documents indicating that plaintiff was moving to sell the vessel in order to satisfy its judgment. The gist of these documents seems to have been that the judgment to be satisfied would be for about $5 million and that other debts, ownership interests, etc. , would be subordinate to this judgment. Such notice, together with the absence of any advance notice of the requested change in the amount of the judgment debt to $17 million, might well induce detrimental reliance by the parties to whom it was given.

We therefore decline to rule on the motion for summary judgment at this time.

It is suggested that counsel for plaintiff reset the motion with notice to everyone who was notified of the pending sale, and be prepared to address the questions whether the requested relief was comprehended in the complaint and whether the contract debt was merged into the original judgment debt.

**********

Tiapula; Toleafoa v.


AUKUSO TOLEAFOA and FA'AI'U TOLEAFOA, Plaintiffs

v.

TIAPULA IMO, FOGAFOGA TIAPULA, and
DOES I-XX, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 10-87

May 11, 1988

__________

A family member's right to use Samoan communal lands is conditional; the family member must render tautua to the matai in accordance with custom and must use and occupy the lands.

The authority of a matai over Samoan communal land is not terminated by designation of the land to the use of particular family members.

Samoan way of life is dynamic, not static, and is amenable to change.

The concept of tautua (service) varies from family to family and is best defined by the family rather than the court.

Tautua is an enforceable obligation only against family members who occupy and use communal family lands.

Relinquishment of possession of communal land by voluntary surrender or abandonment causes the land to revert to the matai and family.

Whether relinquishment of possession has occurred causing reversion of land to the matai and family is not determined solely by the intent of the relinquishing family member, but is a question of fact.

Family member must plead and prove good faith effort was made to settle disagreements with senior matai and within the family as condition precedent to bringing suit against matai or other family members. [12ASR2d118]

Family member's good faith efforts to settle land dispute within the family were questionable where prayer for relief seeks damages in amounts disproportionate to those suffered and where matai's offer to furnish family lands upon family member's return to the territory was refused.

Court asked to intervene in family dispute will not substitute its judgment for that of the senior matai absent clear abuse of discretion.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiffs, Charles Ala'ilima
For Defendants, Edwin Gurr and Faiaoga Mamea

As conceded by plaintiffs, this is not your run of the mill land dispute. The Court is again presented the infrequent occasion to intervene between the family matai and an individual family member who necessarily claims that the actions of the former have transcended the permissible boundaries of "pule" and is in derogation of cognizable rights of the individual family member.

Plaintiff, Faaiu Toleafoa, is a blood member of the Tiapula family of Alao, American Samoa. She is joined by her husband, Aukuso Toleafoa, in this suit against the senior matai (sa'o), Tiapula Imo, seeking relief against the said matai for the latter's alleged actions resulting in the removal of plaintiffs' home and two outer structures (faleo'o) and in damaging assorted crops.

Plaintiffs were designated about a half acre of family lands by the late Tiapula Auina. In 1968 they had built a small structure on the location and moved thereon cultivating an area surrounding the structure. In 1977, plaintiffs rebuilt their living quarters and this essentially consisted of a Samoan type "fale" al though covered wi th roofing iron. The cost of this structure at the time was said to be some $600.00 in materials.

Shortly after this structure was built, plaintiffs moved to the United States in 1979 and Mrs. Toleafoa testified that their primary purpose [12ASR2d119] in moving was the education of their children. Their absence is thus claimed to be temporary.

Following their departure, Mrs. Toleafoa had her brother and then her sister occupy the premises but they in turn moved out to care for their own family homes.

To the date of hearing we find that plaintiffs are basically residing in the United States although there was a period of time when Mr. Toleafoa returned to Samoa in 1983 for the apparent purpose of maintaining the family homestead and to serve the matai. When Mr. Toleafoa returned, he took employment on island and initially stayed at Alao. He also visited his wife and children periodically in the mainland and it was during such an extended visit that the Toleafoas received word that their home and belongings had been removed at the instigation of the matai defendant. Mr. Toleafoa has not since returned to the territory, however Mrs. Toleafoa came to Samoa to meet with the matai and she eventually brought these proceedings.

Defendant matai has held the family's title "Tiapula" since the year 1980 and agreed that plaintiffs' structures were dismantled at his directions as senior matai. Defendant testified that for all intents and purposes, plaintiffs had abandoned their home and site, He was aware that plaintiff Faaiu's sister was last living in the house but she had moved out in 1982. He also testified that in 1983 when Mr. Toleafoa returned to Samoa, said Toleafoa was welcomed back into the family and appointed the "matai taulealea" of Tiapula. However as things turned out, the matai's expectations did not materialize. Toleafoa was said to have rarely visited Alao village, abnegated his duties as matai taulealea and failed to render tautua or participate in family affairs. The defendant further testified that he was embarrassed with complaints regarding the use of plaintiffs' home for frequent drinking bouts by the village youth and with the place left unattended it was overgrown and accumulating a lot of trash.

Consequently at a family meeting called by the matai in 1986, he had instructed the family to dismantle the plaintiffs' structures and clear the overgrowth. Defendant claims that besides notice to the family via the mentioned family meeting, he [12ASR2d120] had specifically told Faaiu's sister, Vaosa who had formerly occupied plaintiffs' home, that the same was to be dismantled and the surrounding lands cleaned up.

For some time, however, no one in the family acted on the matai's instructions and in the following year the matai specifically directed one Natia to dismantle plaintiffs' structures and to clear the land. This was accordingly done and subsequently another structure was erected on the clearing and the same is claimed by the matai as his own.

When word got to the Toleafoas in the United States regarding their structures, Mrs. Toleafoa returned to the territory and confronted the matai. Chief Tiapula testified (and this testimony is corroborated by plaintiff) that his advice to Mrs. Toleafoa was that she concentrate on schooling her children; that upon their return and removal to the territory, a piece of family land will be designated for them. The matai went on to testify that there was more than enough family land to accommodate the plaintiffs upon their return. The consoling attempts by the matai were not acceptable to plaintiffs who now seek damages and an order from the court essentially seeking to undo what has resulted from matai action.

DISCUSSION

At the outset, it is the opinion of this Court that the particular facts of this case do not warrant judicial intervention as any conclusion beyond that would sanction the proposition that an individual family member's right to communal family lands is absolute. Such a conclusion of course is neither grounded in law nor custom.

It is trite observation that a family member's right to use of communal lands is subject to certain conditions. One is that reciprocal obligation to the family through "tautua" to the matai in accordance with custom. Talagu v. Te'o. 4 A.S.R. 121 (1974); Leapaga v. Masalosalo, 4 A.S.R. 868 (1962). The fact that a parcel of land has been designated to a family member for his or her use does not thereby terminate the matai's pule over such land. Pisa v. Solaita, 1 A.S.R. 520 (1964). [12ASR2d121]

The implications of plaintiffs' contentions suggest that somehow this obligation can be put on hold or suspended provisionally for certain purposes. That suspensory purpose advanced here by plaintiffs is the education of their children. Plaintiffs guardedly submit in the alternative that they have substantially satisfied this obligation by participating off-island in fa'alavelave that concerned other absent family members. Necessarily plaintiffs must suggest in connection herewith a somewhat fluid notion of "tautua".

Admittedly the Samoan way of life has been said to be "dynamic" and not "static" and has been amenable to change, Fairholt v. Aulava, 1 A.S.R.2d 73, 76 (1983), and one would have to be blind not to notice that certain forms of tautua in the past are not as readily observable today. But then "tautua" must surely vary from family to family and is in the final analysis a matter more apt for family definition. Thus any invitation to the Court to generalize parameters of what is and is not tautua would be to favor enhancement of the "static" through judicial fiat .

What may be generally stated is that a matai does not, and never has had to, discharge family obligations on his own, and it goes without saying that tautua to the matai ensures communal activity. But then that tautua becomes only an enforceable obligation against those family members occupying and using communal family lands. It is to these family members that the matai can look for traditional services with sanctions. If we were to otherwise prescribe exceptions to the customary obligation of tautua such as extended absence for educating children while permitting the extended encumbrance of communal family lands, then we would surely be adding to custom something not otherwise envisaged, and undoubtedly lacking in any factual foundation whatsoever.

In the present matter, the matai testified that plaintiffs have not rendered service and have not participated in family affairs. The matai's conclusion can hardly be refuted. Plaintiffs in their many years of absence from the territory have not shared in the communal burden with fa'alavelave and obligations to the same extent that confronted the matai and on-island resident members. Further Mr. Toleafoa's return to the territory in 1983 for purposes of tautua and participation in family [12ASR2d122] affairs proved to be more in the way of good intentions rather than substance. Although presented the opportunity, he did nothing more than to positively affirm his own immediate family's lack of tautua and service.

Another recognized limitation to a family member's right to family lands is actual use and occupation of such land. Relinquishment of possession to land causes a reversion of the land back to the matai and family. Talau v. Te'o, 4 A.S.R. 121 (1974). Relinquishment of possession may be either by voluntary surrender or by abandonment by the family member. Id. at 125. While a family member's intentions may not have been to abandon the land, the issue of whether relinquishment has arisen and the matai has effectively taken over to the exclusion of the family member is "one of fact". Id. at 125.

On the facts hereof we are satisfied that relinquishment of possession had occurred after the many years of absence by the plaintiffs. While plaintiff, Faaiu Toleafoa, may argue against relinquishment in that she had both her brother and then sister occupy the premises, we see no more resulting in this than arrangement for the sake of appearances. In substance, both the brother and sister had their own houses to look after which eventually caused both to move out of plaintiffs' home. Indeed the sister Vaosa had in existence for many years her own more permanent structure in the nature of a "palagi" style home, which, as she testified, could not be neglected by her for any length of time. She in turn placed a non-family member to occupy plaintiffs' premises when she moved out but even appearances were no longer evident with this final set up. As far as the matai knew, there was nobody living on the premises which were unattended, overgrown and accumulating a garbage heap. The land itself was doing no one in the family any good; there was no service arising in connection therewith; and the matai from his stance had no idea what plaintiffs' plans were to return to the land, if ever.

In these circumstances, the question naturally arises, what is expected of a matai in the normal course, given the trust reposed upon him to look after family assets. This matai called a family meeting giving notice of his intentions, which notice was specifically given to plaintiffs' [12ASR2d123]immediate relatives on-island. Execution of the matai's directives did not take place for another year and yet in the interim the matai was still left sitting in the dark by those family members whose interest would be affected by his decision making.

On the above alone, a holding would logically follow in favor of the matai, but of interest in this case was that this matai's attitude in court did not really appear to emphasize the above factors in justification. As earlier noted, when he was finally confronted by plaintiffs, and after he had acted, his sentiment was not in the manner of eviction without further ado. Despite the bringing of these proceedings the matai nonetheless committed under oath to be steadfast with the conciliatory attempts he had first tendered plaintiffs, namely, that upon their return to the territory, a similar tract of family property would be ensured them. We can hardly imagine the more reasonable unless such would be that plaintiffs may have their cake and eat it as well.

It is appropriate to pause at this point and consider the cautions of Chief Justice Gardner in Fairholt v. Aulava (Supra), "declining to establish a precedent by which any malcontent family member can willy nilly run to court every time a sa'o makes a family decision with which he disagrees." .ld. at 78. The Court here held that as "condition precedent to bringing an action against the sa'o or other family member, the family member must plead and prove a good faith effort has been made to settle the problem with the sa'o and within the family." Id at 78 (emphasis added) .

While the evidence disclosed a conference with the sa' o the requirement of "good faith" on the part of family member was far from evident in this case. If any inferences may be drawn, it was that family member had an agenda to take the sa'o to court notwithstanding. Her prayer included damages of $10,000.00 for value of the dismantled home which the evidence at best pointed to $600.00 for building materials. Given ten (10) years of wear and tear, which was probably advanced by neglect, the actual market value of such a Samoan structure is questionable. Good faith? The prayer also seeks $20,000.00 in mental anguish suffered which the evidence at best showed no more than symptomatic of a condition for which common [12ASR2d124] household aspirin would be the better suited relief. Again we question good faith. In circumstances of an extended period of continued absence from the family and family obligations. the refusal by plaintiffs of the matai's offer to be furnished family lands upon their return to the territory - and thereby being in the position to meet customary obligations - is again a question mark on good faith.

As declared in Fairholt (supra) the court's role in intra family disputes is a review one. The court will not substitute its judgment for that of the senior matai. absent a clear abuse of discretion. Such an abuse is clearly absent here on the record.

On the foregoing, it is the conclusion of the Court that plaintiffs have not in any way shown cause for judicial interference in what has otherwise been the proper exercise of matai jurisdiction. We therefore leave it to the matai's good senses to resolve this matter in the manner he had proposed to plaintiffs in the first place and as subsequently promised by him on the witness stand.

We also dismiss the defendant's counter-claim. We note with the last minute change of counsel that the counter-claim was not seriously pursued. This is no reflection on counsel Gurr who substituted for then counsel of record. The counter-claim asked the court to essentially fabricate a lease in retrospect between the parties in order to base a "quantum meruit" claim for rent against plaintiffs . This cause is utterly without merit. The court will construe a lease but it will not create one. The second count of the counter-claim not only mirrors plaintiffs' claim for mental suffering, but also its entire lack of merit. We are equally unable to sustain here on the facts any such cause of action approaching the realm of torts.

It is accordingly ORDERED, ADJUDGED and DECREED.

**********

Utuutuvanu; Mataituli v.


MATAITULI S. TAUA and VAIELUA LAMEKO,
Plaintiffs/Objectors

v.

UTUUTUVANU S. FAATEA, Defendant/Claimant

High Court of American Samoa
Land and Titles Division

LT No. 30-87

May 13, 1988

__________

Where party seeking to register land relied on family history that conflicted with equally credible family history of objector to registration, and where preponderance of the evidence showed the land to be occupied by objector and those rendering service to him, registration would be denied.

Where objector to proposed registration proved his family's claim to the land by preponderance of the evidence at trial, but objector had not served other objectors with notice of trial date, court should not order registration of the land as the property of the prevailing objector but should allow objector to file a proposed registration in accordance with statutory procedures.

Before REES, Chief Justice, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff Mataituli, Edwin Gurr
For Defendant, Aviata Fa'alevao [7ASR2d135]

The facts in this case are as follows:

1) In 1987 Utuutuvanu Faatea offered a tract of land called "Fa'aea" in Amanave for registration as the communal land of the Utuutuvanu family. (A previous attempt by the same claimant to register the same land had been rejected by the Court on the ground that the claimant was not then the registered Utuutuvanu titleholder and therefore had no standing to offer land for registration on behalf of the family. Tutuvanu v. Niui'a, LT No. 16-84 (decided March 20, 1985). )

2) Mataituli Taua and Vaielua Lameko objected, claiming respectively that the land in question was the property of the Mataituli and Vaielua families.

3) Vaielua did not, however, file in this case when notified to do so.

a complaint

4) Mataituli did file a complaint. The complaint was served on Utuutuvanu. There is no evidence in the record that a copy was served on Vaielua.

5) On March 15, 1988, the case between Mataituli and Utuutuvanu came for trial. Witnesses for Mataituli were himself and Tago Logoiafi. Utuutuvanu was his own witness.

6) The preponderance of the evidence at trial was to the effect that all or almost all members of the Mataituli family are also connected to the Utuutuvanu family and vice versa. Mataituli claims that Utuutuvanu is a lesser matai title of his family; Utuutuvanu claims that Mataituli is a lesser matai title of his family. Each party relies on his own family history and legend to support his claim. The Utuutuvanu family believes that the Mataituli family came to the land only because a Mataituli once married the daughter of an Utuutuvanu. The Mataituli family agrees that such a marriage occurred. Their legend has it, however, that the Mataituli family had lived on the land long before the marriage in question, and that the Utuutuvanu title itself was created and conferred on the first Utuutuvanu by an early Mataituli. The Court finds the two stories, in and of themselves, equally credible and coherent.

7) Tago Logoiafi, the pulenu'u of Amanave and also a member of the Mataituli family, testified

[7ASR2d136] that the Mataituli title is recognized within the village as independent of the Utuutuvanu family. Although this witness's dogged efforts to avoid admitting that he was related to Mataituli were not helpful to his credibility, his substantive testimony was uncontroverted.

8) The preponderance of the evidence at trial was to the effect that the land offered for registration is part of a larger tract, also called Fa'aea, which is now occupied by Mataituli and by other family members who render service to Mataituli and not to Utuutuvanu.

We conclude that the offer of registration by Utuutuvanu must be denied. His family history affords no intrinsic basis to establish its own accuracy over against that of Mataituli. The other evidence ---occupancy of the land by Mataituli and by those rendering service to him, and the uncontroverted testimony to the effect that the village recognizes Mataituli as a title in its own right preponderates against the claim of Utuutuvanu.

We also conclude, however, that it would be inappropriate to order the registration of the tract as the property of the Mataituli family. In the first place, the tract represents only a small portion of what the Mataituli family claims to be the extent of Fa'aea, so if Mataituli wishes to register the whole of Fa'aea he would have in any case to make a new offer of registration.

Moreover, Mataituli's complaint was never served on the other objector, Vaielua. Vaielua did receive a notice from the Clerk of the High Court to the effect that he must file a pleading within twenty days or lose the right to press his objection to the Utuutuvanu registration. The Mataituli family, however, could easily have brought the Vaielua family into this proceeding in order to test its claim against theirs but chose not to do so.

Finally, even apart from the failure to serve Vaielua, the case presented at trial by Mataituli was awfully thin. It was concerned almost exclusively with the relationship between the Mataituli

and Utuutuvanu families, and was sufficient to defeat the Utuutuvanu registration [7ASR2d137] but not to establish a title good against the world.

The offer of registration by Utuutuvanu is denied. If Mataituli wishes to register the land he should offer it for registration in accordance with the statutory procedures.

It is so ordered.

**********


Lutu v. American Samoa Gov’t,


MERI-MINE M. LUTU, a minor, by and through 
her Guardians Ad Litem, SMITTY S. SU'ESU'E 
LUTU and MUAITOFIGA F. LUTU, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and LILIA 
TAUGAVAU, Defendants

High Court of American Samoa 
Trial Division

CA No. 159-87

February 23, 1988

__________

Where territorial statutes differed in language and structure from federal statutes on same subject matter, territorial court should not disregard clear language of territorial statutes in reliance on judicial decisions construing federal statutes. [7ASR2d62]

Where statute provides that minor has one year after termination of minority to commence any action regardless of any otherwise applicable limitation period, an action brought within this one year period is not barred by two year statute of limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204.

Statute providing that judgment against government precludes later claim against government employee based on same event does not bar suit against employee prior to judgment against government. A.S.C.A. § 43.1207.

Statute immunizing government employees from personal liability for wrongful acts committed within the scope of their employment bars suit against employee only after it has been established that the wrongful conduct underlying the claim was committed within the scope of employment. A.S.C.A. § 43.1211(a).

Before REES, Chief Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, John Ward 
For Defendants, Martin Yerick, Assistant Attorney General

On Motion to Dismiss:

In 1984 Meri-Mine Lutu was struck by what we assume for the purposes of this motion was a school bus driven by an employee of the American Samoa Government. Almost three years later Miss Lutu, a minor, filed a claim with the Attorney General through her parents. The Attorney General denied the claim, citing the statutory two-year limitation on commencing a tort action against the government. Miss Lutu then brought this action against the Government and the bus driver.

Reiterating its view that the action is too late, the Government has moved to dismiss. In the alternative the Government urges that the bus driver is not a proper party defendant. [7ASR2d63]

I. The Statute of Limitations

Defendants argue that the territorial Government Tort Liability Act, A.S.C.A. §§ 43.1201 et seq. (hereinafter "GTLA") strictly confines the limitation period on tort actions against the Government to two years. (1)

Plaintiffs rely on another section of the Code which provides in pertinent part that a minor "shall have 1 year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitation period." A.S.C.A. § 43.0126 (emphasis added). Since Meri-Mine is still a minor, they argue, the statute of limitations has not even begun to run. (2) Defendants contend, however, that this section does not apply to tort claims against the Government. They rely principally on federal cases holding that a provision of the United States Code affording [7ASR2d64] similar protection to minors (3) does not toll the two-year statute of limitations applicable to tort claims against the federal government. (4) Since the GTLA was modeled on the Federal Tort Claims Act, and since the federal decisions uniformly regard the federal two-year limitation as absolute and unaffected by the provision tolling limitation periods during disability, the government contends that the American Samoa statutes should be similarly interpreted.

It is true that the federal courts require a tort action against the United States to be brought within two years even if the claimant is under a legal disability such as minority. See, e.g., Simon v. United States, 244 F.2d 703 (5th Cir. 1957); Pittman v. United States, 341 F.2d 739 (9th Cir. 1965); United States v. Glenn, 231 F.2d 884 (9th Cir. 1956). The cases generally rely on the principle that a sovereign government need not subject itself to suit at all. When it acts to waive its immunity and consents to be sued in tort, and when the statute creating the right to sue clearly imposes a time limit, then a party advancing a claim under that statute must comply[7ASR2d65] strictly with its terms, including the time limit. See Simon, supra, 244 F.2d at 704-06. The courts regard it as clear from the language and history of the federal provisions that Congress was especially wary of having to defend stale tort claims. See Pittman, supra, 341 F.2d at 741-42. Therefore the two-year limitation on tort claims in 28 U.S.C. § 2401(b) must be construed as an exception to the rule provided by 28 U.S.C. § 2401(a) tolling the limitation period in the case of a minor plaintiff. Pittman, 341 F.2d at 740-41; Simon, 244 F.2d at 704-05.

The Glenn court reached the same conclusion a little differently. Aside from the general tendency of sovereign governments not to issue broad waivers of immunity, it found no particular evidence of congressional intent one way or the other on the question whether the limitation on tort claims should run against a legally disabled claimant. The court noted that § 2401(a), creating a six-year general statute of limitations for claims against the government and suspending it for legally disabled persons, and § 2401(b), creating a two-year limitation on tort claims and containing no tolling words to cover disabilities, were incorporated into the United States Code from two earlier statutes. The statute that was the source for § 2401(a) included a disabilities exception; the source of § 2401(b) did not. As enacted, the two subsections of § 2401 provide two different rules: a general rule for non-tort suits against the government and a special and different rule for tort claims. In the absence of evidence in the language or history of the statute that the disability exception of § 2401(a) was meant to apply also to § 2401(b), the former must be read as having nothing to do with the latter. Glenn, 231 F.2d at 886-87.

Neither the reasoning of Simon and Pittman nor that of Glenn suggests a similar result in American Samoa. Indeed, the best inference that can be drawn from the structure and relationship of the two American Samoa statutes is exactly the opposite of the inference drawn by the Glenn court from the structure and relationship of the two federal provisions. The federal law says to those who might wish to sue the federal government:

(1) You have six years to bring your action, unless you are a 
minor or [7ASR2d66] otherwise legally disabled in which 
case you have three years after the disability ends.

(2) If the action is a tort action you have only two years.

See 28 U.S.C. § 2401(a), reprinted in note 3 supra; id. § 2401(b), reprinted in pertinent part in note 4 supra. The American Samoa Code, on the other hand, says the following:

(1) You have two years to bring a tort claim.

(2) If you are a minor or insane you have 1 year after the 
disability ends to bring gny action, regardless of how long 
you would have if you were not so disabled.

(3) You have one year to bring a tort claim against the government.

See A.S.C.A. §§ 43.0120, 43.0126, 43.1204.

The American Samoa statutes. in other words. are importantly different from the federal provisions in their language, their structure, and their apparent relation to one another. The federal statutes of limitation comprise two subsections of a single section, 28 U.S.C. § 2401. The two subsections appear to state different rules for different kinds of cases. The first subsection states a rule and immediately announces an exception for minors; the second subsection states a somewhat different rule and announces no such exception. This strongly implies that the exception applies to the former but not to the latter. See Glenn, supra, 231 F.2d at 886. In contrast, the exception for minors in American Samoa does not appear to have been intended only as a proviso or caveat to some particular statute of limitations. It is contained in a separate section of the Code and expressly announces its application to "any" action, regardless of "any" statute of limitations that would otherwise apply. A.S.C.A. § 43.0126.

In light of the differences in language and structure between the federal and territorial statutes, it would be most inappropriate to [7ASR2d67] disregard the clear language of the latter on the basis of evidence (or judicial assumptions) about the intentions of Congress in enacting the former. The Simon and Pittman courts found that the dominant intention of Congress (or, more accurately, of the various Congresses that enacted and revised the various parts of 28 U.S.C. § 2401) was to ensure that the federal government would not have to defend stale claims. While the Fono seems to have shared this concern when it enacted the one-year limitation in the GTLA, it is not at all clear that this concern superseded all others, If anything, the strongest statement of legislative purpose that emerges from a study of the territorial statutes is the special solicitude for minors and insane persons reflected in the sweeping language of A.S.C.A. § 43.0126.

In any case, unlike a court construing the federal statutes of limitations we are not faced with the need to resolve a textual ambiguity or conflict by designating one of several competing legislative purposes as the dominant one, The American Samoa statutes are not ambiguous: the statute relied on by the government clearly establishes a one-year statute of limitations, and the statute relied on by the plaintiffs just as clearly makes an exception to "any" statute of limitations, No conflict between the statutes is visible to the naked eye: one states a rule, the other an exception to all such rules, The effect of introducing evidence that there was at least one statute of limitations to which the Fono did not really mean the exception for minors to apply--- or that when the Fono enacted the GTLA it implicitly changed its mind about the general exception for minors, and would have enacted an explicit exception to the exception if anyone had thought about it ---would be to supply ambiguity rather than to resolve it.

Reasonable people can differ on how a court should decide a case in which clear evidence of legislative intent clashes with what would otherwise be the apparent meaning of the text. This is not such a case: we are aware of no particular evidence about what the Fono actually did intend when it enacted any of the statutes at issue in this case. Rather, we are asked to deduce such an intention from a chain of assumptions and inferences to the effect that in enacting the various statutes at issue in this case the Fono [7ASR2d68] intended (or, to be precise, "dominantly" intended; or, to be more precise, would have "dominantly" intended if anyone had adverted to the question) what the federal courts have decided Congress must have "dominantly" intended when it enacted a somewhat different set of statutes. We think it more consistent with the respect due a co-ordinate branch of government to assume that the Fono really did mean to exempt minors from "any" statute of limitations; and that it would have known how to amend this rule if it had meant to do so when it enacted the GTLA.

II. The Bus Driver

The government has also moved the Court to strike Silia Taugavau, the bus driver, as a party defendant. The motion is based upon two sections of the GTLA which together, according to the government, prohibit suit against an individual ASG employee when the claimant is proceeding under the GTLA. Two earlier decisions of this Court do imply that an individual employee can never be a defendant in a GTLA lawsuit in which the Government is also a defendant. Aga v. American Samoa Government, 3 A.S.R.2d 130 (1986); Moananu v. American Samoa Government, CA No.133-85 (Decision and Order on Motion to Dismiss, November 12, 1986) (obiter dictum).

We are persuaded, however, that these decisions incorrectly apply the GTLA sections at issue. Rather, we believe the Court's contrary holding in Tevaseu v. American Samoa Government, 5 A.S.R.2d 10 (CA No.88-87, July 8, 1987), correctly construed these two sections, which provide as follows:

The judgment in an action, or the payment of a claim by 
the Attorney General, under this chapter shall constitute 
a complete bar to any action by the claimant, by reason 
of the same subject matter, against the employee of the 
government whose act or omission gave rise to the claim.

A.S.C.A § 43.1207.

(a) The remedy by suit against the government as provided 
by this chapter for damage to or loss of property, or personal 
injury or death caused by the negligent or [7ASR2d69] 
wrongful act or omission of any employee of the government 
while acting within the scope of his office or employment, 
shall hereafter be exclusive of any other civil action or 
proceeding by reason of the same subject matter against the 
employee whose act or omission gave rise to the claim, or 
his estate.

A.S.C.A. § 43.1211(a).

Under A.S.C.A. § 43.1207, a judgment against the ASG precludes a later claim against the responsible employee based on the same transaction. This merely prohibits a claimant from recovering twice, not from suing the employee in the first place. See Henderson v. Bluemink, 511 F.2d 399, 404 (D.C. Cir. 1974) (construing an identical federal provision). With A.S.C.A. § 43.1211(a) the Fono has cloaked ASG employees with full immunity from personal liability for the consequences of wrongful acts committed within the scope of their employment. The government is therefore correct to argue that an individual government employee cannot remain a defendant once it is established that the wrongful conduct underlying the claim was committed within the scope of his employment. Unless and until that is established, however, suit against the employee is fully available and nothing in § 43.1211(a) suggests otherwise. (In fact, § 43.1211(b) requires the Attorney General to represent the employee under these circumstances.)

The government may wish to show that Silia Taugavau was acting without the scope of his employment when the accident with Ms. Lutu took place. In that case, Taugavau would remain an appropriate defendant. Alternatively, the government may be willing to stipulate that Taugavau was acting within the scope of his employment. Then and only then should he be stricken as a defendant.

The government's motion is denied.

**********

1. A.S.C.A. § 43.1204, the section of the GTLA relied upon by the government, provides:

A tort claim against the government shall be forever barred unless 
an action on it is begun within 2 years after the claim accrues.

2. Since a minor is no longer prohibited from bringing suit once a guardian ad litem has been appointed for him, and since Meri-Mine's parents were appointed her guardians ad litem on December 18, 1987, it would seem that the statute of limitations in this case began to run on that date at the very latest. Since the guardians filed suit on the day they were appointed, we need not reach the question whether a claim by a minor for whom a guardian had been appointed would be barred if it were brought more than one year after the appointment.

3. U.S.C. § 2401(a) provides:

Every civil action commenced against the United States shall be 
barred unless the complaint is filed within six years after the right 
of action first accrues. The action of any person under legal disability
or beyond the seas at the time the claim accrues may be commenced 
within three years after the disability ceases.

4. The statute of limitations for tort claims against the federal government 
is contained in U.S.C. § 2401(b), which provides in pertinent part:

A tort claim against the United States shall be forever barred unless 
it is presented in writing to the appropriate Federal agency within 
two years after such claim accrues.

King v. Comm’r of Revenue,


J.P. KING, Petitioner

v.

COMMISSIONER OF REVENUE, GOVERNMENT OF 
AMERICAN SAMOA, Respondent

High Court of American Samoa 
Trial Division

CA No.155-87

March 14, 1988

__________

Statute of limitations must be properly pled and proven.

Failure to plead the statute of limitations is a waiver of that defense. [7ASR2d91]

Under rules governing tax litigation, a party may amend pleadings by leave of court which shall be given freely when justice requires. Tax Court Rule 41.

In order to promote justice, court would exercise its discretion and give respondent leave to amend its answer to assert fraud on the part of petitioner and thus avoid petitioner's statute of limitations defense even though it had not yet been established that petition properly raised the issue.

Before KRUSE, Associate Justice, and OLO, Associate Judge.

Counsel: Petitioner J.P. King pro se 
For Respondent, Martin Yerick, Assistant Attorney General

On Motion for Leave to Amend Answer:

Respondent American Samoa Government (hereafter "ASG",) and its tax office manager, move the Court for leave to amend their answer filed herein so as to add a paragraph alleging fraud on the part of petitioner with regard to the filing of his 1983 tax return. ASG advances the amendment under the misnomer "affirmative defense" obviously with the underlying sentiment of ensuring that fraud is put at issue to counter any limitations defenses which petitioner may have.

Petitioner excepts to the amendment for a number of reasons which the Court finds inconsequential, although distracting petitioner's focus from matters for which he should have regard.

This matter arose upon tax payer's pro se petition for redetermination of an ASG income tax deficiency determination for tax year 1983 and noticed upon petitioner by 90 day letter dated 8124187. The petition itself fails to plead the statute of limitations although as a defense, the statute of limitations must be properly pleaded as well as proven. Badway v. United States, 367 F.2d 22 (1st Cir. 1966). Failure to plead the statute of limitations as a defense constitutes a waiver of that defense. United States v. Gurley, 415 F.2d 144 (5th Cir. 1969). Further, under Tax Court Rule [7ASR2d92] 39, a party must set forth in his pleadings any matter constituting an avoidance or affirmative defense, including the statute of limitations. A mere denial thereof in a responsive pleading does not raise the issue. See Rule 39.

After the filing of ASG's answer, and apparently prior to the service thereof upon petitioner, the latter files a motion to dismiss or in the alternative, for declaratory judgment. The moving papers now contain a reference to a "3 year statute of limitations."

Prior to the hearing of the motion, ASG files a responsive argument in opposition as well as a cross motion to amend its answer as aforesaid. At the time set for hearing of petitioner's alternative motions, petitioner withdraws the same without, therefore, the Court considering the merits of the motions and the grounds there raised, including the limitations defense.

The issue is hardly before us, but the question irresistibly arises as to whether a limitations defense has been properly pleaded and therefore raised in accordance with the authorities above cited. If not, then the corollary, of course, is that the issue of fraud so as to prevent the operation of the statute of limitations would not be relevant.

Turning to the merits of ASG's motion to amend its answer, we look to the requirements of Tax Court Rule 41 which provides, inter alia, that, a party may amend his pleadings.... by leave of court.... and leave shall be given freely when justice so requires."

Leave is a matter for the Court's proper discretion and it appearing to the Court that leave would be promotive of justice, the motion is granted.

Petitioner may reply to and address the amended answer pursuant to the provisions of Tax Court Rule 37.

It is so ORDERED.

**********

Kim v. Star-Kist Samoa, Inc.,


CHEON SU KIM, Plaintiff

v.

STAR-KIST SAMOA, Inc., YOUNG KWANG
FISHERIES Co. , M/V # 25 TAE CHANG, and
DOES 1-10, Defendants

High Court of American Samoa
Trial Division

CA No. 103-87

January 12, 1988

__________

Forklift operator was negligent where it was proven that he was driving with a load that partly obstructed his view in the direction the forklift was moving, that he paid undue attention to the sides of his load with a corresponding lack of attention to what was in front of the forklift, and that he was going slowly enough to have been able to avoid an accident if he had been paying attention.

Seasoned fisherman who should know of the haphazard movements of forklifts near the docks, who was conversing with other fishermen on the dock adjacent to the forklift traffic, and who was injured by slow moving forklift, was negligent.

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, William Reardon
For Defendants, Togiola T.A. Tulafono

Plaintiff, a seaman off one of the fishing vessels anchored at defendant Star-Kist Samoa, Inc. 's dock, sues in damages for personal injuries sustained when run over by one of defendant's fork lifts operating on the dock. [7ASR2d13]

Defendant's dock runs parallel with its shoreline facilities to which fishing vessels tie up to unload their catch. The unloading process utilizes standardized scows which are moved by fork lifts in and about the facilities. Empty scows are stacked to the edge of the wharf on the sami side for ready access with unloading, while at the same time, scows filled with fish could be variously stacked to the opposite side for thawing and receiving by the processing system. On the day in question, scows were variously stacked on both sides of the dock and these stacks in places were at least two wide and two high. Accordingly some restrictions in movement resulted. Testimony had it that movement at places was about a 9 foot corridor although generally there was room enough for 3 forklifts to manoeuver comfortably from opposing directions on the day of the accident.

At around 2:30 p.m. in the afternoon of April 20, 1987, and prior to a change in shift, plaintiff was walking along the shoreline side of the dock towards his vessel. He crossed the dock and continued walking along the sami side and then stopped to talk to someone, or some persons, aboard one of the vessels tied alongside the dock.

At the same time one Tesimoni, employed by defendant Star-Kist as a fork lift operator, was following in plaintiff's direction with a scow loaded with trash which was being taken to a staging area. The scow contained a cardboard box protruding over the top by some 18 inches. According to the driver, this box did not affect his view of the dock and he had no idea how the accident occurred until the rear end tires of the forklift felt as though having run over something. The driver stopped his vehicle and saw plaintiff's legs extending from underneath the back of the forklift with his upper body under the forklift itself. The accident as he pointed out occurred just beyond one of the stacked rows of empty scows alongside the same side of the dock. He estimated his speed at about 3 miles per hour as he was deliberately taking his time with this last movement owing to the fact that he was about to end his shift. The driver expressed puzzlement with how the victim ended up under the rear tires of the fork lift as the scow at the front of the lift and the guards or barrier where the forks are located would not have permitted the plaintiff to pass [7ASR2d14] under the forklift if the collision with plaintiff occurred with the front of the vehicle.

An eye witness to the occurrence was one Daniel Ah San, also an employee of Star-Kist, who was on the dock monitoring the thawing scows of frozen fish destined for processing.

Ah San confirmed that the fork lift was operated in a slow fashion, and in his view, the operator's line of vision was affected by the cardboard box on the trash scow. He also testified however that while he was able to see the operator's head from where he was standing, he came to his conclusion about restricted vision in that he saw the operator stretch from side to side of the fork lift while it was moving. Further, he testified that he saw the left front side of the forklift hit the plaintiff who was then thrown to the ground and got his head caught between the wharf and the left boom of the forklift. He was eventually run over by the left wheel of the forklift before the driver stopped.

Prior to the collision, Ah San stated that he saw plaintiff walk from the eastern end of the dock along the shore side and then cross to the sami side. He continued walking past a stack of empty scows and then stopped to talk to person[s] aboard one of the vessels tied to the dock. While so engaged in conversation, he was struck by the fork lift.

LIABILITY

We conclude on the facts that defendant's conduct at the time was wanting in the appropriate measure of care demanded in the circumstances. Forklifts are not in their nature instruments which may be operated with unrestricted vision, and accordingly, that extra degree of proper care is demanded of the operator. While we find that the operator's line of sight was not necessarily hampered by the load he was carting at the time, we do conclude that the operator failed to maintain a proper look out in the circumstances. We accept the evidence that the operator was showing more concern for the width of his load by stretching from side to side, needlessly forgoing complete attention to the direction of movement of the forklift. The operator testified that he did not see the plaintiff at all until he felt his rear [7ASR2d15] left tire being lifted off the ground. Further, the dock at the time was servicing vessels with parts of the dock reduced to narrow corridors because of the stacked rows of scows. It was just beyond a stack of these scows that the collision occurred and it appears to the Court that the plaintiff was probably hidden from the operator's view until nearing the end of the stacked row. Given the slowness of the operator's speed, proper attention could have avoided the accident.

On the other hand, the Court is not open to find that the proximate cause of injury is solely attributable to the fork lift operator. We conclude that plaintiff was also, in the circumstances, blameworthy, having failed to be sufficiently concerned with foreseeable risk attendant to the movement of machinery. Plaintiff, according to the evidence, is a seasoned fisherman and a ranking deck hand. Unloading and loading activities on a wharf should be familiar to him. That unlike the regulated flow of traffic on the highways, forklifts and like machinery on a dock are apt to move willy nilly from one point on the wharf to another. It goes without saying that a wharf servicing vessels with the necessary movement of machinery and equipment, is not the place for social discourse and casualness. Given the slowness of speed of the forklift, the court is equally unable to understand why the accident happened with plaintiff caught unaware, unless of course he was to that degree so rapt in conversation with others so as to render him completely unmindful of his locale, and the attendant risks involved with the locale.

We conclude and assess that proximate cause of injury was attributable as follows: plaintiff 40%, and the fork lift operator 60%. As there was no contention on the evidence about the operator being an employee of defendant Star-Kist Samoa, Inc., and acting at all relevant times within the scope of employment, the employer is liable for the negligent consequences of its employee's conduct.

DAMAGES

The collision resulted in a number of injuries to plaintiff. He suffered facial lacerations and contusions, comminuted fractures to the left cheek bone (Zycoma) and part of the eye socket (floor, lateral and anterior wall of the left orbital). [7ASR2d16] Plaintiff also sustained a crushing injury to the rib cage causing a flail chest and was found to have a fracture of the left femur. X-Rays also indicated a fractured pelvis.

Upon admission to the L.B.J. Tropical Medical Center, plaintiff's lacerations were cleansed and repaired and a Steinman pin applied to his left knee area for traction pending surgery. He was placed in the Intensive Care Unit on a Ventilator because of his flail chest condition. After a week, plaintiff was weaned off the Ventilator to recommence breathing on his own. The doctor testifying, added that this initially was not without a lot of pain to the patient.

After sufficient chest recovery, plaintiff was required to undergo a number of surgical operations. Besides traction, treatment to plaintiff's leg necessitated open reduction with metallic fixation (K Rod). Dr. No'ovao of the Surgical Clinic testified that plaintiff was complaining of hip pains and he had rescheduled plaintiff for further surgery to have the metal rod removed.

Some two weeks after, plaintiff again went into the operating room in connection with his facial fractures. He had to undergo an open reduction of the orbital fractures and immobilization with wire and packing.

By and large, recovery was remarkable. Dr. No'ovao's prognosis was as follows: with plaintiff's chest, the doctor testified that lung function was almost back one hundred per cent. Plaintiff's fractured ribs had healed completely and there was no evidence of fibrosis with lung tissues. Due to treatment, plaintiff's right shoulder was literally frozen from motion for a period of a month and initially causing movement limitations with his arm. He was now able to lift his arm without assistance and while there may be fibrositis scarring of the shoulder joint, movement will be fully restored. Plaintiff's leg injury was said to have healed nicely and movement was in the normal range. There was some slight pain experienced in plaintiff's hip area, but as noted above, this was due to the rod installed in plaintiff's leg and which would be removed. [7ASR2d17]

Pelvic injuries had healed satisfactorily and in Dr. No'ovao's assessment these injuries should not contribute to any disability.

Some disability will remain however as a result of plaintiff's facial injuries. Treating physician, Dr. Saelua had plaintiff's recovery as good. Bone fractures and graft (to build up the floor of the eye socket and align the eyes) had healed. Plaintiff has sustained nerve injury which will affect sensation, and the ability to make facial expression. Further, facial muscles concerned will atrophy and cause facial loss of tone and shape. Additionally plaintiff has lost normal eye closure ability which together with his facial muscle restrictions, give him the appearance of a sunken eye. With residual eye closure especially, the left eye will have the tendency to dry up and be exposed to irritants. In the way of relief, plaintiff is prescribed artificial tears, however, in Dr. Saelua's assessment, the life of the fisherman with exposure to the sea and the elements was not recommended with plaintiff given his eye condition. Plaintiff is capable of resuming the life of manual work but he will need to seek employment in a sheltered environment.

Plaintiff was hospitalized at the L.B.J. Tropical Medical Center from April 20, 1987 until discharged on August 25, 1987, although his hospital records reveal that plaintiff was ready for discharge June 6, 1987, but continued to remain in hospital owing to placement difficulties.

Plaintiff's personal data are that he is 48 years of age, married with 3 children, and two of whom are minors. He has been associated with the fishing industry for some 17 years and was at the time of the accident a leading deckhand. The industry rates a person of plaintiff's experience at an earning scale of approximately $14,000.00 per annum. (1) [7ASR2d18]

CONCLUSION

On the foregoing we assess damages as follows: for injuries, including pain and suffering, sustained, $80,000.00; for diminished earning capacity, $15,000.00; for medical costs $7,000.00; and for loss of earnings due to the accident $2,000.00.

In accordance with our finding of comparative negligence, total damages payable by Star-Kist Samoa, Inc., as the employer of the fork lift operator shall be $62,400.00. (2)

Judgment is entered accordingly, and it is so ORDERED.

**********

1. Defendant Star-Kist did provide evidence to the contrary concerning plaintiff's specific circumstances. Plaintiff has been crewing on a vessel whose last voyages have not resulted in profit. The greater part of the itemized factors used to calculate income for plaintiff was said to be directly related to net fish proceeds. In case of plaintiff's vessel, this net figure has been a negative since plaintiff's recent employment.

2. Plaintiff's cause of action against the vessel owner for maintenance and cure was not pursued here.

In re Guardianship of Tedrow,


In re Special Guardianship of RONALD HANS
TEDROW, ELKI EVELYN TEDROW, CHARLENE
ANN TEDROW, DARLENE NELLIE TEDROW, and STEVEN
TEDROW, Minors

WILLIAM REARDON, Special Guardian, Petitioner

High Court of American Samoa
Trial Division

PR No. 22-87

March 11, 1988

__________

Party who enters an appearance in pending action, not only objecting to court's exercise of jurisdiction over property but also asserting arguments on the merits of the action, thereby subjects himself to the court's jurisdiction notwithstanding his characterization of his appearance as "special."

Appearance of licensed attorney appointed as "attorney in fact" by principal outside court's territorial jurisdiction, asserting the principal's ownership of property within territorial jurisdiction and seeking affirmative relief, afforded an independent ground of jurisdiction over the principal and his property.

When a judgment creditor moves to seize property of the judgment debtor and the Court has determined that the property does belong to the judgment debtor, the property should ordinarily be held by the Court rather than by the creditor, the debtor, or the person previously in possession pending judicial determination of the creditor's right to seize it.

Court did not deprive attorney of life, liberty, or property without due process of law, either by injury to his reputation or otherwise, where (1) [7ASR2d73] attorney had represented judgment debtor; (2) attorney also represented other members of judgment debtor's family; (3) after judgment, the judgment debtor and her family had agreed to changes in the record ownership of property formerly recorded as property of the judgment debtor, had arranged for the sale of the property, and had removed themselves from the territorial jurisdiction of the court; (4) attorney had in his possession the proceeds of the sale, which judgment creditor alleged to be the property of the debtor but which debtor and other family members claimed to be the property of other family members; (5) court had held the funds to be the property of the judgment debtor and subject to seizure by the judgment creditor; and (6) court ordered the funds to be deposited in the registry of the court pending further proceedings.

Court will not ordinarily approve proposed division of property among minors and their guardians without clear and convincing evidence that the proposed division is fair to the minors.

Duty of a guardian or other fiduciary to be zealous in the protection of the interests of those to whom the fiduciary duty is owed is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary.

Although retention of a single attorney to represent the interests of minors and the personal interests of their guardian may sometimes be justified by convenience and financial savings, the guardian and the attorney must carefully consider potential conflicts between the interests of the guardian and those of the minors.

Joint representation of minors and their guardian by a single attorney is not appropriate where there is actual conflict between the reasonably arguable rights and interests of the guardian and those of the minors.

Court's signature on order authorizing guardian to proceed with a transaction and deposit a certain sum to the account of minors did not preclude court from subsequently deciding that the minors were entitled to a greater sum, where (1) guardian was an attorney who also represented another party to the same transaction; (2) the draft order was submitted to the court by the guardian subsequent [7ASR2d74] to a hearing at which the court had given verbal approval of guardian's proposal to proceed with the transaction and hold the proceeds subject to the court's future orders on their disposition; (3) allocation of the proceeds among the minors and other parties to the transaction was not raised at the prior hearing; (4) at a subsequent hearing after the court had signed the order but before the transaction had actually occurred, the guardian did suggest that his other client was entitled to some of the proceeds of the transaction and the court expressed disagreement.

Before REES, Chief Justice, TUIAFONO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: Petitioner William Reardon pro se

On Motion for Reconsideration:

I. Facts and Procedural History

This guardianship arose out of Civil Action No. 59-83, Te'o v. Continental Insurance Co. The facts leading up to the petition of attorney William Reardon to be appointed guardian for the Tedrow children are set out in Te'o v. Continental Insurance Co., CA No. 59-83, 6 A.S.R.2d 135 (Opinion and Order on Motion to Invalidate Deed, issued December 18, 1987) [hereinafter cited as December 18 Order].

In Te'o the Court held:

(1) that an attempted conveyance to the Tedrow children of a tract of land upon which the Tedrow family home had been built was an invalid attempt to defeat the rights of Mrs. Tedrow's creditors;

(2) that Mrs. Tedrow, who had contracted for the purchase of the land and in whose name the payments had been made until some time after the judgment against her, had remained the equitable owner of the land and all the improvements on it and had retained the sole right to receive legal title to the land and its improvements as soon as the payments were completed;

(3) that the proceeds of a subsequent sale of the land and its improvements ---which had been [7ASR2d75] transacted by petitioner Reardon as "attorney in fact" for Mr. Tedrow, as guardian for the Tedrow children, and with the express consent of Mrs. Tedrow whom attorney Reardon has represented in the post-judgment stages of the Te'o case ---were the property of Mrs. Tedrow and were therefore subject to seizure by her creditors; but

(4) that since the money for the purchase of the land and the construction of the house seems to have come from Mr. Tedrow (apparently the sole breadwinner of the Tedrow family) and since Mrs. Tedrow's creditors had invoked the Court's equitable powers, the creditors would be allowed to seize only half of the proceeds despite Mrs. Tedrow's legal title to the whole.

Mr. Reardon [hereinafter referred to as "the petitioner"] had sold the land and the house for a total of $65,000 with the approval of the Court. The Court's approval was given subject to the condition that the entire proceeds be held in trust and not removed from the Territory until the Court had resolved the dispute in the Te'o case over the ownership of any such proceeds. (1) When the Court reached its decision on this question, it ordered that plaintiffs in Te'o (Mrs. Tedrow's creditors) receive $32,500 of the proceeds and that the other $32,500 be retained by Mr. and Mrs. Tedrow. Anticipating appeals by both sides, however, the Court further ordered that the entire $65,000 be deposited in the registry of the Court pending further proceedings. December 18 Order, supra. A companion order was issued in this guardianship action.

On January 11, 1988, the Court heard a series of motions made by the present petitioner in response to the December 18 orders. In CA No. 59- 83 ---appearing in his capacity as attorney for Mrs. Tedrow and also for Mr. Tedrow, who was "appear[ing] specially to assert his and his [7ASR2d76] family's rights," which was said to be "necessary because this court has issued orders jeopardizing the families property without due process of law" (2) ---the petitioner moved for a reconsideration of that part of the Court's order that had awarded $32,500 to the plaintiffs, and in the alternative for a stay of execution. In this guardianship action ---appearing in his capacities as special guardian for the children and "attorney in fact" for Mr. Tedrow ---he moved "to release the funds [7ASR2d77] which were deposited in the court registry pursuant to the court order of December 18, 1987."

In CA No. 59-83 the Court denied the motion for reconsideration but granted the motion for a stay of execution pending appeal. In this guardianship action (PR No.22-87) the petitioner's "motion to release funds" was denied with respect to the $32,500 that had been awarded to the Te'o plaintiffs. The Court noted, however, that Te'o plaintiffs had waived their right to appeal that part of the judgment that reserved the other $32,500 for the petitioner's clients. With respect to this money the Court therefore granted the petitioner's motion. The money was ordered to be released by the Clerk to the petitioner on condition that it be placed in trust for the Tedrow children. Reporter's Transcript of Proceedings held on Jan. 11, 1988, at 2-3.

A few days later the petitioner made a further motion to the effect that the Court approve the deposit of $20,000 of the money that had been awarded to him into trust accounts for the Tedrow children. The motion went on to "inform" the Court that the remaining $12,500 would be deposited into Mr. Tedrow's bank account. On January 22 the Court responded to this motion by instructing the petitioner to hold the whole $32,500 in trust for the children pending his appeal of the judgment in Te'o. The Court observed that the Tedrows' and the petitioner's contention in Te'o is that the land was validly conveyed to the children, and that if the appellate court were to accept this contention it might well conclude that the land and all its improvements (and therefore the entire proceeds of the sale, not just $20,000) belonged to the children.

The petitioner now moves for reconsideration of our January 11 order insofar as we refused to return the entire $65,000 to the Tedrows. He also moves for reconsideration of our January 22 order requiring that all of the $32,500 that was released to him should be held in trust for the Tedrow children pending appeal.

II. The January 11 Order

The motion for reconsideration of the January 11order states three grounds, all of which boil down to the contention that the Court acted [7ASR2d78] illegally on December 18 when it directed the petitioner to deposit the $65,000 into the registry of the Court. (3) Such orders, however, are not only not illegal but are the standard procedure whenever a judgment creditor attempts to seize property allegedly belonging to his judgment debtor. Once the Court has determined that the property does belong to the judgment debtor, it is held by the Court ---not by the debtor and not by the creditor and not by the person previously in possession--- pending a determination of the creditor's right to seize it. See e.g., A.S.C.A. § 43.0907 (attachment); A.S.C.A. § 43.1524 (execution); A.S.C.A. § 43.1811 (garnishment). That plaintiffs in Te'o proceeded by "motion for order in aid of judgment" and a "motion to invalidate warranty deed'. and did not also seek writs of garnishment or execution may have been sloppy pleading, as the Court suggested several times during these proceedings; but it is not the stuff of which due process and other unnamed civil rights violations are made. Here both Mr. and Mrs. Tedrow had not only had an opportunity to be heard, they had actually been heard at some length prior to December 18 on the only question ---whether the funds did or did not belong to the judgment debtor on which they may have had a right to be heard. (4) [7ASR2d79]

Once the Court had decided that the $65,000 did in fact belong to Mrs. Tedrow, it ordered the money deposited into the registry of the Court pending further proceedings about its ultimate disposition, just as would have happened in any other proceeding for post-judgment seizure. December 18 Order, CA 59-83; Order, PR 22-87, dated December 18, 1987. Any "taking" in such cases is , of course, only temporary; a permanent taking will occur if and only if it is determined after further judicial proceedings (i.e., even more due process) that the person who possessed the money prior to its deposit in the registry of the Court had no right to it. Indeed, in this case half of the money was returned to the petitioner as soon as the Te'o plaintiffs waived their right to appeal. The other half will also be returned if and when an appellate court should reverse this court's judgment that the Te'o plaintiffs are entitled to it.

The real gravamen of petitioner's "due process" contention, as he elaborated it in the hearing on this motion, was that the Court may have injured his reputation by requiring the money to be deposited in the registry of the Court rather than retained in his trust account. "What you said, essentially, [was that] Mr. Tedrow and I couldn't be trusted." Reporter's Transcript of Proceedings Held 2/4/88 at 4-5. Injuries to reputation are not generally cognizable as due process violations. Paul v. Davis, 424 U.S. 693 (1976). In any case, the inference drawn by the petitioner would only be justified if an order that funds be deposited in the registry of the Court were an extraordinary measure taken only against untrustworthy people. On the contrary, most lawyers and most parties are trustworthy and yet funds identified as belonging to judgment debtors are routinely placed in the registry of the Court pending post-judgment execution proceedings. See the discussion at pages 77-78, supra.

Finally, however, the history of these proceedings prior to December 18 ---the conveyance to the children, the "special appearance" by Mr. Tedrow to assert what turned out to be arguments not only about jurisdiction but also on the merits, and the employment of an attorney at law as an "attorney in fact" as a device by which the real party in interest could seek affirmative judicial relief while ostensibly remaining outside the [7ASR2d80] Court's jurisdiction ---did give the Court reason to believe that Mr. Tedrow was actively interested in getting these funds out of the Territory whether or not the Court so ordered. The Court could not be absolutely certain that a lawyer zealously representing such a client would be unable to discern some arguable loophole, exception, vagueness, or ambiguity in its earlier orders, or some jurisdictional or other ground on which the client might be arguably within his rights in disregarding these orders. Similarly, the Court was reasonably certain but not absolutely certain that petitioner's statement that "none of the money will leave until the decision" (CA 59-83, Reporter's Transcript of Proceedings September 10, 1987, at 6, emphasis added) meant until the ultimate outcome of the proceedings and not just until the trial court's initial decision. Far from implying that petitioner is unethical, the Court was seeking to avoid a situation in which he might feel that his ethical obligation to represent his client zealously within the limits of the law required him to do something contrary to what the Court regarded as the meaning of its lawful orders.

The petitioner also takes strong exception to the use of the word "collusion" in the Court's December 18 order. This word, however, was used not with respect to any action petitioner did take but with respect to an action ---co-operation in an effort to remove assets from the Territory--- that he did not take. December 18 Order, slip opinion at 8.

III. The January 22 Order

In urging reconsideration of our January 22 order the petitioner (appearing as guardian of the children and also as "attorney in fact" for Mr . Tedrow) reiterates his objections to the January 11 order. He also argues that the Court has already approved the way in which he proposes to divide the proceeds: $20,000 to the children as the owners of the land, and $45,000 to Mr. Tedrow on the theory that he paid for the house that was built on the land and therefore owns it. For the Court to require that $32,500 be held in trust for the children pending an appellate decision that might result in a determination that it belongs to them, therefore, is said to constitute yet another violation of due process. The petitioner also contends that this order renders the sale of the [7ASR2d81] house and land null and void, since Mr. Tedrow only approved the sale on the understanding that he would personally receive $45,000 of the proceeds.

The Court did sign, on October 2, 1987, an order drafted by the petitioner. One phrase in that order ("and deposit the sum of $20,000 to an interest bearing account in the name of the minors") might be construed outside its context as an approval of the proposed allocation of the property among Mr. Tedrow and the children. In fact, however, the Court signed the order only to formalize its earlier verbal approval of the petitioner's request that he be permitted to proceed with the sale and hold the proceeds subject to the Court's future orders on their disposition. The grounds for this request were that he had located a willing buyer for the house and that difficulties of communication with Mr. Tedrow made it impractical to delay the sale pending the resolution of the ongoing Te'o controversy. The question of how to divide the proceeds never came up. See CA 59-83, Reporter's Transcript of Proceedings September 10, 1987, at 5-6. The Court had never heard arguments in support of the novel proposition that land and the structures erected on it can be owned by different people in the absence of a separation agreement ---which the Court is now supposed to have implicitly and finally approved when it signed the order.

Nor had the Court been presented with facts even arguably sufficient to support the relative valuation assigned to the house and the land by the petitioner. The sole evidence presented was Mr. Tedrow's affidavit to the effect that the land originally cost $17,077. In order to address the question whether the proposed allocation of $45,000 to Mr. Tedrow as "owner of the house" and only $20,000 to the children as "owners of the land" was sufficiently fair to the children to merit Court approval, the Court would have had to know at the very least how much Mr. Tedrow had spent on materials and labor for the house. The Court did not demand any such evidence because it never for a moment considered reaching the question whether $20,000 would be a fair award to the children ii the conveyance to them was valid and ii, contrary to settled law and to the express terms of the land [7ASR2d82] sale contract, they thereby acquired the land but not the structures built upon it. (5) [7ASR2d83]

Instead, the Court signed the order on the explicit condition (set out in a handwritten appendix to the petitioner's draft order) that "the removal from the Territory of any funds received in connection with the land or the house is enjoined pending further proceedings." PR No. 22-87, Order dated October 2, 1987 (emphasis in the original). If this was insufficient to deter the petitioner and Mr. Tedrow from relying on any implication in the language of the draft order that the Court was holding the children entitled at most to $20,000, the Court's remarks at the next hearing certainly eliminated any arguable ground for such reliance. At this hearing (held prior to the completion of the sale) the petitioner asserted for the first time in open court his position that "Mr. Tedrow's house" should be considered a piece of property separate from the land. The Court rejected this assertion, the petitioner repeated it, and the Court rejected it again at some length. Reporter's Partial Transcript of Proceedings Held 11/04/87 at 10-11. The petitioner and the Tedrows nevertheless went ahead with the sale.

As it happens, the judges signing the present opinion agree with Mr. Tedrow that he is entitled to the $12,500 he seeks. Indeed, we have already held that he is entitled to $32,500. Our order on January 22 that the petitioner retain the money in trust for the children pending appeal was an interim order whose sole purpose was to preserve the power of the appellate court to decide to whom the money belongs. If an appellate court should affirm our holding that the conveyance to the children was invalid, or if the petitioner should choose not to appeal that holding, Mr. Tedrow will immediately be entitled to receive the $32,500. If the appellate court should accept the petitioner's contention that the conveyance to the children was valid, it may go on to consider the question whether Mr. Tedrow is nevertheless the owner of the house and, if so, to assess the relative valuation of the house and the land; or it may remand these questions to the trial court, which has not yet had occasion to reach them. In either case it would seem distinctly possible that the children will be held entitled to the entire $65,000. If Mr. Tedrow wishes to obtain immediate possession of the $12,500 to which he believes himself entitled he may do so by posting a bond or by proposing to the Court some other way to guarantee that it will be [7ASR2d84] returned if he should be held not to own it. Otherwise the petitioner should retain the money in trust pending further proceedings.

The motions are denied.

**********

1. See CA No.59-83 (Order issued September 3, 1987; Reporter's Transcript of Proceedings, September 10, 1987, at 3-6). See also the "Order for Appointment of Special Guardian To Sell Real Estate of Minors" in this case, signed on October 2, 1987, and the handwritten note at the conclusion of the order.

2. Defendants' Memorandum in Support of Motions, CA 59-83, filed December 28, 1987, at 4. The Court had previously asserted jurisdiction over any proceeds of the sale on the basis of evidence before it establishing a prima facie case that the real estate being sold was the property of Mrs. Tedrow, the defendant in Te'o. See CA 59-83, Reporter's Transcript of Proceedings, September 10, 1987, at 4. If any doubt remained about the Court's jurisdiction to issue orders with regard to the disposition of these proceeds that bind Mr. Tedrow as well as the other interested parties, Mr. Tedrow's expansion of his "special appearance" in Te'o beyond jurisdictional arguments to assert arguments on the merits would resolve it. T.C.R.C.P. Rule 12 is patterned on the corresponding federal rule, which effectively abolishes the distinction between special and general appearances by requiring that jurisdictional defenses and defenses on the merits be contained in the same pleading. Mr. Tedrow, however, appeared in Te'o not because he was named as a defendant but because he wished the Court to recognize his claim to ownership of the house and of the resulting proceeds. Even under Rule 12 such an appearance constitutes consent to the Court's jurisdiction irrespective of whether it is styled "special." R. Clinton Construction Co. v. Brvant & Reaves. Inc.) 442 F. Supp. 838 (N.D. Miss. 1977). In any event petitioner's appearance in this case pursuant to his status as "attorney in fact" for Mr. Tedrow, seeking affirmative relief from the Court with regard to these proceeds, would afford an independent ground of jurisdiction over the proceeds even if they did belong to Mr. Tedrow.

3. The three grounds, reproduced in their entirety, are (1) "[t]he taking of the funds on December 18, 1987 violated due process of law"; (2) "[t]here was not sufficient facts to warrant a taking without notice and opportunity to be heard at anytime"; and (3) "the civil rights of Petitioner and the real parties in interest were violated by the Court's action in C.A. 59-83."

4. See, e.g., Defendants' Memorandum in Opposition to Motion to Invalidate Warranty Deed and Prohibit Transaction of Land Without Court Approval, CA 59-83; Special Appearance By Donald Tedrow, CA 59-83; Petition for Appointment of Special Guardian to Convey Real Estate (filed in this case by the petitioner as "attorney in fact" for Mr. Tedrow); Reporter's Partial Transcript of Proceedings Held 11/04/87 in CA 59-83 and PR 22-87.

5. Justices of the High Court have routinely refused to approve proposed divisions of property among minors and their guardians without clear and convincing evidence that the proposed divisions are fair to the minors. If the Court had reached the merits of the proposed allocation of the proceeds among Mr. Tedrow and his children it would have required a showing similar to that required in Logoa'i v. South Pacific Island Airways, Inc., CA No. 108-84, 6 A.S.R.2d 28 (1987), in which a proposed wrongful death settlement gave $187,000 to decedent's estate and widow and only $39,000 to decedent's children. The widow, who was also the children's guardian, and her attorneys were required either to show that the children's share was proportionate to what it would probably have been if the case had been litigated or to revise the settlement to give twice as much to the children. In cases such as this one and Logoa'i the adult parties have almost always retained a single attorney to represent themselves and their children. The convenience and financial saving represented by such an arrangement will ordinarily justify it notwithstanding the potential for conflict of interest. However, "[t]he duty to be zealous in the protection of the interests of those to whom one owes a fiduciary duty is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary." Logoa'i, supra, 6 A.S.R.2d at 29.
In the beginning stages of the controversy concerning the Tedrows' house, the potential for conflict among the arguable rights and interests of various family members must have seemed slight. In the present posture of the case this is no longer true. If petitioner wishes to press the argument that Mr. Tedrow was the sole owner of the house, he will of course wish to consider carefully whether separate counsel should be retained to press the children's competing claim that the conveyance of the land to them also conveyed the ownership of any structures theretofore or thereafter built on the land.

In re Estate of Fuimaono,


In re Estate of GALU VALA FUlMAONO

YVONNE FUIMAONO, Petitioner

High Court of American Samoa 
Trial Division

PR No.24-88

June 9, 1988

__________

Territorial statute providing for transfer of small estates to persons entitled thereto without letters [7ASR2d143] of administration was inapplicable to estate with assets in excess of $10,000. A.S.C.A. § 40.0334.

When petitioner had secured the transfer of contents of a safe deposit box belonging to decedent by attesting that the assets in decedent's estate had a total value of less than $10,000, and safe deposit box was subsequently discovered to contain assets whose value was greater than $10,000, the assets could not be distributed or retained by the petitioner without the issuance of letters of administration for decedent's estate. A.S.C.A. § 40.0334.

Before REES, Chief Justice.

Counsel: For Petitioner, Charles Ala'ilima

Petitioner Yvonne Fuimaono, the widow of the deceased, petitioned the Court for transfer of his assets to her in accordance with the provisions of A.S.C.A. § 40.0334. It is an essential prerequisite to the procedure provided in that section that the total assets of the deceased be valued at less than $10,000, and petitioner Fuimaono so attested in her petition.

The inventory of the contents of a safety deposit box held by the deceased clearly reveals that his assets include at least $10,838 in cash. Since our order that the assets of the deceased be transferred to petitioner Fuimaono was based on the erroneous assumption that the assets were less than $10,000, the order is hereby rescinded. The assets belong to the estate of Galu Fuimaono and the law prohibits their disposition except in connection with the lawful administration of the estate. They should be deposited immediately with the Clerk of the Court, where they will be held until the petitioner or someone else can be appointed administrator of the estate.

It is so ordered.

**********

In re Estate of Auelua,


In re Guardianship of TAUESE AUELUA

In re Guardianship of FO'I AGASIVA 
and OPAALO AGASIVA

DEVELOPMENT BANK OF AMERICAN SAMOA, 
Guardian of the Estates, Petitioner

High Court of American Samoa 
Trial Division

PR No. 14-65 
PR No. 10-80

March 4, 1988

__________

Guardian of the estate of an incompetent person could not discharge its obligation to account for funds belonging to the estate merely by informing the Court that all the money was gone, even though the guardian was an institution whose management had changed hands since the establishment of the guardianship.

Before REES, Chief Justice.

Counsel: For Petitioner, Steven H. Watson

On Request to Approve Annual Accountings:

The High Court recently conducted a review of its guardianship files. The primary purpose of this exercise was to identify guardianships that should be terminated because the circumstances giving rise to them (in most cases the need to administer property belonging to a minor) had ended. The review also called to the Court's attention a number of cases in which the guardian had failed to make required reports to the Court. In these cases the Court ordered that such reports be made within thirty days.

These two cases concern adults who were adjudged incompetent to manage their property and for whom the Development Bank of American Samoa was therefore appointed guardian. In PR No. 14-65 a [7ASR2d71]guardian was first appointed in 1965 and regular annual reports were made through 1982. In January of 1983 the Court approved the expenditure of about half the money in the fund ($5101.60) for the improvement of a house in which the ward was living, on condition that written receipts for all expenditures be submitted to the Court. No such receipts were ever submitted and no annual report was filed for 1983 or any subsequent year. In PR No. 10-80 a guardian was appointed in 1980 and an annual report was filed for that year but for no subsequent year.

In response to the Court's order for status reports on these two cases the Development Bank has submitted "annual accountings " indicating that all the money in each account was expended in the first year for which an annual report is overdue. No information is supplied about how the money was spent, to whom it was disbursed, or why it was disbursed without court approval. (The advance approval of the Court had been sought for all previous disbursements in each of these cases, and in No. 14-65 there was an explicit order to the effect that written receipts must be supplied to the Court.) We do not even know, and possibly the guardian does not know, whether the wards are dead or alive.

A fiduciary cannot discharge his accounting and reporting obligations merely by informing the Court that all the money is gone. The Court understands that the management of the Development Bank has changed hands several times since the early 1980s and that present management is not personally responsible for any breaches in fiduciary obligations that may have occurred during that time. Before the Court can decide what to do about these matters, however, it is necessary to get a clearer picture of what happened. This can probably be obtained from copies of the Bank's records concerning the expenditures in question, supplemented if necessary by sworn statements from the present and former Bank officials and employees who handled the transactions and from the wards or their relatives. If the Bank prefers to proceed by means of hearings in open court, the Court's resources (including the subpoena power) are of course available. The Bank should file revised reports or schedule hearings in these cases by Apri14. [7ASR2d72]

It is so ordered.

**********

Godinet; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

IGNATIUS GODINET, Jr., Defendant

ALEX GODINET and FRANK GODINET, 
Respondents to Order to Show Cause

High Court of American Samoa 
Trial Division

CR No. 62-87

May 2, 1988

__________

Criminal trial is not a private matter between victim and defendant or his family, and anyone who enters an agreement with the purpose of rendering court unable to proceed by making evidence unavailable may be held in contempt of court.

Courts have inherent power to ensure the integrity of court functions by punishing contempt of court, even in the absence of statutory contempt power.

Criminal contempt statute authorizing the executive to prosecute certain conduct as criminal contempt of court does not limit court's power to act on its own under general contempt statute. A.S.C.A. §§ 3.0203, 46.4617.

General contempt statute may give rise to criminal liability despite existence of separate statute making certain acts criminal offenses. A.S.C.A. §§ 3.0203, 46.4617. [7ASR2d128] Contempt statute giving court power. to punish resistance or disobedience to court's process should be construed to refer to resistance or obstruction of the process by which the court conducts its business, not just disobedience to subpoena or other paper requiring attendance in court. A.S.C.A. § 3.0203.

Agreement between prospective witness in criminal proceeding and members of the defendant's family that defendant would leave the territory and victim would refuse to testify constituted resistance to process of court within meaning of contempt statute, even if "process" is construed narrowly to refer to a subpoena and even though the agreement was made prior to the issuance of a subpoena to the witness. since the agreement could not reasonably be construed to mean that the witness would refuse to testify only if she received no subpoena. A.S.C.A. § 3.0203.

Agreement between p1'ospective witness and members of criminal defendant's family that defendant would leave the territory and witness would refuse to testify, made after court's order that defendant stand trial and with the purpose of preventing the trial, constituted resistance to the court's mandate within the meaning of contempt statute. A.S.C.A. § 3.0203.

Before REES, Chief Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, James Doherty, Assistant Attorney General 
For Defendant Ignatius Godinet, Aitofele Sunia 
For Respondents on Order to Show Cause, Togiola T.A. Tulafono

On Motion for Reconsideration or New Trial:

On November 28, 1987, a fifteen-year-old girl went to the police station and gave a lengthy statement detailing the circumstances of her alleged rape the previous night by Ignatius Godinet, Jr. Godinet was arrested and became the subject of a criminal prosecution. On the partial basis of the girl's testimony at the preliminary examination before the District Court, Godinet was [7ASR2d129] bound over to the High Court on charges of rape, sodomy, and sexual assault. The Chief Justice of the High Court ordered that trial be set for January 19, 1988. The girl was to be the principal witness for the prosecution. Another alleged eyewitness, a fifteen-year-old boy whose prior statement and preliminary examination testimony had substantially corroborated the girl's charges, left the Territory shortly thereafter for an undisclosed destination.

Four days before the date scheduled for trial, the complaining witness met with the prosecuting attorney and presented to him a handwritten and signed note given to her the night before by three relatives of the defendant. In the note those relatives promised to ensure that Ignatius Godinet would leave the territory and would never bother the girl again. It was clear that this assurance was given in exchange for the girl's refusal to testify; the note purported to grant or reserve to her "the right to reopen this case" should the defendant return to the Territory.

No subpoena had yet been issued to the complaining witness. This failure, however, was apparently due only to the fact that no one had believed it necessary. The girl had approached the police on her own. She had fully cooperated with the Attorney General's office in its preparation of the case. She had testified at the preliminary examination. When she informed the government of the agreement she had reached with the defendant's relatives, the government immediately sought to compel her appearance by issuing a subpoena. The girl did, however, fulfil her side of the bargain by disappearing, and the case against Ignatius Godinet was subsequently dismissed.

On January 26, 1988, the relatives who had signed the agreement appeared before this Court to show cause why they should not be held in contempt of court. Their principal defense was that the agreement had originally been the girl's idea rather than their own. Two of the relatives, Alex and Frank Godinet, were nevertheless held to be in contempt. The Court explained that a criminal trial is not simply a private matter between the alleged victim and the defendant or his family, and that anyone who enters into an agreement whose purpose is to deprive the Court of its ability to proceed. by making evidence unavailable thereby [7ASR2d130] places himself in contempt of Court regardless of whether the agreement was originally his own idea or someone else's. The Court further noted that the alleged ringleader in the incident was a fifteen-year-old girl and that Alex and Frank Godinet are adults who should have resisted any suggestion by her to enter into an illegal agreement. The Court did, however, accept their testimony about the circumstances of the agreement as tending to mitigate the offense and therefore suspended the six-month sentence.

Counsel for Alex and Frank Godinet now moves for a reconsideration of the holding that they were in contempt, or in the alternative for a new trial.

Counsel's arguments can be distilled to two. First, counsel urges that the territorial statute purporting to give the Court power to punish contempt, A.S.C.A. § 3.0302(3), does not in fact confer authority to punish any particular kind of conduct. Rather, in order to be punishable as contempt an action must be prohibited by the separate contempt statute in the criminal code, A.S.C.A. § 46.4617. Second, since the witness had not been served a subpoena at the time of the agreement that she would not testify, there was no "process" of the Court for the agreement to have impeded.

The first argument is founded on a misunderstanding of the nature of the Court's power to punish contempt. Courts necessarily possess the inherent ability to take steps to ensure the integrity of the process by which they decide the cases before them.

[T]he right of courts to conduct their business in an untrammeled 
way lies at the foundation of our system of government and courts 
necessarily must possess the means of punishing for contempt when 
conduct tends directly to prevent the discharge of their functions.

Wood v. Georgia, 370 U.S. 375, 383 (1962). In other words, the High Court could hold someone in contempt even if there were no statutes at all. It happens that the Fono has affirmed this power by enacting A.S.C.A. § 3.0203. It has also enacted a separate statute, A.S.C.A. § 46.4617, which makes certain contumacious acts punishable by ordinary [7ASR2d131] criminal prosecution. The criminal statute, which vests discretionary power in the executive to prosecute certain kinds of conduct, in no way diminishes the Court's power to act on its own initiative under the former statute. Cf. Steinert v. United States District Court for the District of Nevada, 543 F.2d 69, 70 (9th Cir. 1976) (18 U.S.C. § 401, a federal statute similar to A.S.C.A. § 3.0203, may give rise to criminal liability despite the existence of a separate statute making certain contumacious acts criminal offenses). Here lies the answer to the argument that A.S.C.A. § 3.0203 is "not capable of violation."

The defendants next argue that, since no subpoena had yet been served on the witness, their efforts to ensure her absence could not have been contumacious of the Court's authority. This argument assumes not only that the term "process" as it appears in A.S.C.A. §§ 3.0203 and 46.4617 must mean an affirmative and explicit command from the Court, but also that it is only possible to "resist" process that has already been formally issued.

The first of these two propositions ---that "resistance to process" should be narrowly construed to mean only the encouragement of disobedience to a subpoena rather than comprehending any deliberate obstruction of the process by which the Court conducts its business ---has support in at least one judicial opinion from another jurisdiction. See Sellers v. State, 90 So. 716 (Miss. 1922). We are inclined, however, to disagree with the holding in Sellers for the reasons stated in the vigorous dissent to that opinion and in the cases and other authorities cited therein. The phrase in our contempt statute on which defendants in this contempt proceeding rely, defining contempt to include in pertinent part "disobedience or resistance to [the Court's] lawful writ, process, order, rule, decree, or command," (1) seems to have been designed to restate [7ASR2d132] and incorporate the common law definition of contempt, under which efforts to secure the absence of a witness were contumacious regardless of whether the witness had been served with a subpoena. See Sellers, supra, at 717-22 (Ethridge, J., dissenting), and authorities cited therein.

Ultimately, however, we need not decide whether "process" means the judicial process itself or only a subpoena or other paper emanating from that process. For in this case a subpoena actually did issue, albeit a few days after the agreement between the defendants and the witness. The question before us, as formulated by the defendants themselves, is whether the agreement constituted "resistance to" that subpoena. This is a question of contractual interpretation. Surely a contract that explicitly required the girl to disobey any subpoena that might thereafter be issued would be a [7ASR2d133] form of "resistance to" such a subpoena, notwithstanding the chronological order of the two documents. Montomerv v. Palmer, 59 N.W. 148 (Mich. 1894) (convincing witness to avoid service of a subpoena held to be contumacious under statute defining contempt in pertinent part as "unlawful interference with the process" of the court). The question in this case, therefore, is whether the parties to the agreement intended the girl to absent herself only in the event she received no subpoena. Such a construction would seem absurd. It is certainlyat odds with the construction the girl herself put on the agreement: almost immediately after being served with the subpoena she dropped out of sight and subsequently wrote a letter to Ignatius Godinet's lawyer, stating, "I only intend to honor my word and keep at peace wj.th a family." It defies logic to suggest that the defendants have not resisted the process of the Court merely because they got to the witness before the subpoena did.

In any case, even if we found that the defendants in contempt resisted no "process," they certainly resisted an "order" of the Court and therefore committed contempt within the definition of A.S.C.A. §§ 3.0203. (See also A.S.C.A. § 46.4617(3) (emphasis added): contempt includes "intentional disobedience or resistance to the process, injunction, or other mandate of a court.") On December 9, 1987, well before the date of the agreement between the Godinets and the prospective witness, the Court ordered that Ignatius Godinet be tried on January 19, 1988 for two counts of forcible rape, one count of forcible sodomy, and one count of sexual abuse in the first degree. The whole purpose of the agreement into which the Godinets subsequently entered, as evidenced by its language and by the testimony of the defendants themselves at the contempt hearing, was to prevent that trial from taking place. This was "resistance to" the Court's lawful order.

Notwithstanding our disagreement with the defendants' proposed definition of contempt, we will grant their motion for a new trial. The earlier proceeding was necessarily held on short notice; defendants and their counsel, possibly because of inadequate time for preparation, seem not to have appreciated the legal standards that were to be applied and may therefore not have offered all the evidence they might otherwise have [7ASR2d134]wished to offer. The judgment and the suspended sentences will therefore be vacated and a rehearing of the order to show cause will be set for June 15, 1988.

It is so ordered.

**********

1. The quoted language is from A.S.C.A. § 3.0203(3). The statute on which defendants in contempt contend this proceeding should be based, A.S.C.A. § 46.4617(3), forbids "intentional disobedience or resistance to the process, injunction, or other mandate of a court." For the purposes of determining whether defendants in contempt engaged in "resistance to process," the two statutes would appear to be identical. Defendants contend, however, that "process" in § 46.4617 refers back to a preceding section having to do with the obstruction of process servers, which defines "process" as "any writ, summons, subpoena, warrant other than an arrest warrant, or other process or order of a court." A.S.C.A. § 46.4616. We disagree with this contention. A statute making it illegal to obstruct process servers necessarily contemplates "process" only in the sense of papers issued by a court. For the reasons discussed in the text of this opinion, "the process....of a court" within the meaning of a contempt statute would seem to have a far broader meaning. As discussed in the text, however, it is not necessary for us to resolve this question, since defendants committed contempt even within the narrow construction they urge us to adopt.

American Samoa Gov’t; Ferstle v.


BOBBIE FERSTLE and CAROL A. HOLMES, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, 
COSMETOLOGY BOARD, DEPARTMENT 
OF PUBLIC SAFETY, HELGA LEFITI, 
GRETCHEN L.S. MAKAIWI, and DOES 1-10, Defendants

High Court of American Samoa 
Trial Division

CA No. 4-87

February 5, 1988

__________

Argument that license was "revoked" without procedural due process was unfounded where evidence shows license was never granted. Am. Sam. Const. art. I § 2.

Pervasively regulated businesses which have long been subjected to close inspection and supervision, such as barbershops, may in proper circumstances be subjected to warrantless search. Am. Sam. Const. art. I § 5. [7ASR2d27]

Plaintiffs were not denied equal protection when denied license as a hairdresser or cosmetician because they did not meet standard of experience set out by the legislature. U.S. Const. amdt. 14, § 1.

In order to have a cognizable claim for deprivation of procedural due process, one must first possess a "liberty" or "property" interest in the government action complained of. Am. Sam. Const. art. I § 2.

Procedural due process requirements are not fixed, but vary with circumstances and particular demands of the case; however, some sort of notice and hearing is required before an individual is finally deprived of a property interest. Am. Sam. Const. art. I § 2.

Notice and hearing afforded to satisfy procedural due process need not be full judicial hearing. Am. Sam. Const. art. I § 2.

To satisfy requirement of procedural due process, opportunity to be heard must be granted at a meaningful time and in a meaningful manner, but need not always be granted prior to the initial deprivation of property. Am. Sam. Const. art. I § 2.

Ordinarily, due process is satisfied by proceedings less than a full evidentiary hearing prior to adverse administrative action, and the sufficiency of such proceedings is to be determined in light of 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would impose. Am. Sam. Const. art. I § 2.

Procedural due process is satisfied by piecemeal proceedings wherein parties were advised of the required showing, the proofs were considered promptly by the regulating agency, parties were advised of the agency's findings of insufficiency, parties submitted further proofs which agency considered and again advised parties that such proof was insufficient but did not issue a denial [7ASR2d28] and remained open to further submission of proofs Am. Sam. Const. art. I § 2.

Due process requirements of notice and opportunity to be heard are not triggered until adverse administrative action constituting a "final" deprivation of property has taken place. Am. Sam. Const. art. I § 2.

Recurring and intentionally dilatory tactics by agency may constitute "final" action sufficient to trigger due process requirements of notice and hearing. Am. Sam. Const. art. I § 2.

The expected benefit of a license which issues subject to articulated standards of qualification is a property interest giving rise to due process protection, although not to the full range of pre- deprivation procedural protections applicable to entitlements that are less contingent than the expectation of a license. Am. Sam. Const. art. I § 2.

Because in most cases licensing will be a straightforward process, quasi-judicial evidentiary hearing, in all licensing proceedings would needlessly increase government expenditures and such hearings are required only where the proposed action on a license application will be final. Am. Sam. Const. art. I § 2., A.S.C.A. § 31.1508.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, William Reardon 
For Defendants, Phyllis Coven and Martin Yerick, Assistant Attorneys General

Plaintiffs, Bobbie Ferstle and Carol Holmes, filed suit for damages against: the American Samoa Government; the Cosmetology Board of American Samoa; the Department of Public Safety; two named members of the Cosmetology Board, Helga Lefiti and Gretchen Makaiwi; and others joined under the fictitious Doe identity. The claims essentially arise consequent to unsuccessful attempts by plaintiffs to persuade the Cosmetology Board to license plaintiff Carol Holmes as a Cosmetician/Hairdresser under the provisions of the Beauty Culture Act, (hereafter the "BCA") A.S.C.A [7ASR2d29] §§ 31.1502 et seq., and plaintiff Bobbie Ferstle as the proprietor of a beauty shop called "Mr. Paul's". In addition, pending resolution of these applications, Ms. Holmes was placed under arrest at Mr. Paul's by an officer of the Department of Public Safety for using a curling iron and thereby, allegedly practicing as a hairdresser in violation of the BCA. The plaintiffs urge that the arrest was unlawful and incited through a conspiratorial design of the defendants.

The complaint generally alleges that as a proximate result of the actions of defendants and each of them, plaintiffs have been specially and generally damaged.

As a result of pre-trial orders entered in this matter, the Cosmetology Board and the Department of Public Safety were stricken as inappropriate party-defendants. Justice Murphy's reasoning appeared to be that both the department and the board were wi thin the rubric, "American Samoa Government." Also as a result of these motions, plaintiffs identified their cause of action as based on the Federal Civil Rights Act, 42 U.S.C. sections 1983 and 1985. For reasons heretofore given, the Court had granted American Samoa Government's motion for summary judgment in that a Civil Rights Act cause of action did not lie against the government as a matter of law.

At the time of trial, the two named members of the Cosmetology Board were the remaining defendants. Plaintiffs had not identified any of the defendants named in the complaint as Does.

FACTS & LEGAL BACKGROUND

One Paul Parks, a former resident of the territory, had owned and operated up until the close of 1985 a beauty salon known as "Mr. Paul's". Employed with the salon as a beautician was plaintiff Carol Holmes. Ms. Holmes had apparently worked for Mr. Paul's under the misapprehension that she was not subject to additional local licensing as she held a Washington State license. She assumed that she was able to do all the things she was permitted to do in Washington. It was her belief that that was how it works with all the states of the Union. [7ASR2d30]

At or around the year's end, the business was made available for sale after Mr. Parks had departed the territory, leaving Ms. Holmes to run and manage the salon. Also around this time frame, Plaintiff Bobbie Ferstle had returned to the territory for a visit and was introduced to the idea of acquiring Mr. Paul's. Ms. Ferstle had then recently qualified as a beautician according to the laws of the State of California. Ms. Ferstle acquired the salon and then sought to obtain a business license.

Business License Act:

A business license is required of any person or entity proposing to engage in business within the territory. See A.S.C.A. §§ 27.0201 et seq. The licensing process is an annual requirement, (1) and as a business license is by terms of the statute, deemed personal, it is not transferable. (2) Accordingly, Ms. Ferstle had to apply for a license to operate Mr. Paul's on her own standing.

In practice, the application for a business license entails a procedure of securing approvals from ,a number of government agencies and commissions appropriate for licensure of the particular business activity proposed. These approvals are signified by the approving agency by signature on the application form provided for routing through the various agencies. After the application form is complete with the relevant approvals, and upon the applicant's payment of a set fee, a business license is issued.

In plaintiff Ferstle's case, the Cosmetology Board was a statutorily appropriate board included in the approval process by reason of the provisions of the BCA.

Beauty Culture Act:

The BCA was first enacted some time in 1973. According to the testimony of defendant Helga Lefiti, a longstanding salon operator in the territory, the enactment came about after a member of the public received severe chemical burns to her [7ASR2d31] face as a result of "beauty" treatment. The Act is regulatory in purpose and classifies the grooming profession as "Hairdressers" and "Cosmeticians" and provides separate definitions of these terms. See A.S.C.A. § 31.1502(d), (e). As initially enacted in 1973, (26 A.S.C. §§ 1100 et. seq. ) the statute provided for implementation by the Governor's Office, but the 1983 amendment to the Act took this implementation function away from the Governor's Office and created an independent licensing authority known as the "American Samoa Board of Cosmetology". See A.S.C.A. § 31.1502.1. This enactment established the board as consisting of 5 members appointed by the Governor for staggered 3 year terms. At least 2 of the membership must be licensed operators (i.e. "hairdresser" or "cosmetician" ) and the board elects a chairman from its members and meets quarterly or more frequently at the call of the chairman. Administrative and staff services for the board are to be provided by the Office of Economic Development, with legal assistance to come from the Office of the Attorney General.

Generally, the board is charged with a dual licensing function: the licensure of operators (3); and the licensure of the facility for the beauty salon. (4)

The License Application Saga:

According to the testimony of plaintiffs, the license application was first initiated by Ms. Holmes toward the end of 1985 or early 1986. Ms. Holmes testified that she had taken the application to all the agencies and everything had checked out up until the Cosmetology Board.

Plaintiffs further testified that on or about the 11th or 12th of February, 1986, the application was taken personally by both of them to defendant Makaiwi as chairman of the Cosmetology Board. In the discussion that ensued, Makaiwi was apprised of Ferstle's recent graduation under the State of California's requirements. Makaiwi then opined [7ASR2d32] that Ferstle would not be eligible under the BCA to be licensed as an "operator" in that the statute , which contained a reciprocity measure, also required a practical working experience of 3 years within the last 5 years immediately preceding the license application. What followed in the discussion was not clear to the Court, but the plaintiffs left the meeting with certain impressions. Their understanding was that Carol Holmes, with her Washington State certification, would demonstrate proof of qualification under the BCA as an "operator" for purposes of licensing, and that in the interim, they could proceed to open for business. Plaintiffs in their recollection were sure that Ms. Makaiwi had signed and approved the application for them to open for business, pending Ms. Holmes' proof of practical experience.

Ms. Makaiwi on the other hand cannot recall signing anything as she was only one member of a board. In retrospect, she had no personal objection to the business being opened at the time provided Ms. Holmes could satisfy the Cosmetology Board of her practical background. She recalls advising plaintiffs that the board was convening in a matter of days and would take up the application.

The salon, still known as "Mr. Paul's", was reopened on February 14, 1986. Ms. Holmes was clear on this date as it was Valentine's Day.

In reviewing the numerous documented exhibits received into evidence, we find that a copy of plaintiff Ferstle's actual application for a business license affirms Ms. Makaiwi's recollection as more accurate. The application is dated 2/14/86, Valentine's Day, and the Court notes that the section in the form for approval or declination by the Cosmetology Board is unsigned. The Court also notes on the application that the various other approving agencies that signed off on the form all did so on 2/20/86, which was after the time the meeting with Makaiwi was said to have occurred. In point of fact, even if Ms. Makaiwi had signed off on the application, in derogation of board function, a business license could not have been issued any earlier than February 20, 1986. Therefore, the salon was opened on February 14, 1986 prematurely and in violation of the licensing laws. [7ASR2d33]

On or about February 19, 1986, the Cosmetology Board convened and included in the board's agenda were the two license application: that of Ms. Holmes for board approval as an operator, and that of Ms. Ferstle for approvalof the facility as a salon. The minutes of the meeting contain the following entry:

The Board had asked both Mrs. Ferstle and Mrs. Holmes to 
submit their Cosmetology licenses and official working 
experience reference for the Board's evaluation. (Emphasis theirs).

Apparently as a result of this meeting, Chairman Makaiwi telephoned Ms. Ferstle and advised her that the salon could not be licensed until the board received proofs on the practical experience requirement under the BCA. Plaintiffs' testimony was that the salon closed thereafter.

Two days afterward, on February 21, 1986, a quorum of the board reconvened to consider a telex message submitted by plaintiffs. The telex on its face showed transmission origin as the United States Coast Guard Center in Seattle, Washington, its text stated: "Carol Holmes was employed as a part time hairdresser for the past eight years with the CG Exchange" , and i t was sent under signature of Warrant Officer W.H. Hoit. Added and typed to the bottom left corner of the telex sheet was a "True Copy Certification" notation and the signature of a Lt. J.M. Holmes, USCG, Coast Guard Liaison Officer to the Government of American Samoa. Also appended to the telex was a memo under letterhead of the U.S. Coast Guard, Liaison Office, American Samoa, from Lt. Holmes to the Cosmetology Board. The memo bears the date "21 Feb. 1986" and the text is reproduced as an appendix hereto.

At this meeting of the Cosmetology Board, two of its members were absent. Those present were defendants Makaiwi and Lefiti and the board's secretary, Mrs. Howland. The minutes prepared by Mrs. Howland indicated two things that bothered the board. One was the fact that the certifying Lt. Holmes was the husband of plaintiff Carol Holmes. Secondly, the board took umbrage with the suggestive references in Lt. Holmes' memo about cross checking the validity of the telex with the Governor's Office, coupled with the warning that the Office of the Governor was to be informed if [7ASR2d34] problems arose with the board's acceptance of the telex.

Needless to say, Lt. Holmes' approach to the board was atypical of a liaison. He did Ms. Holmes no favors that day by, in effect, inviting suspicion and an appropriate degree of scrutiny from the board on the sufficiency of the offered telex showing. Although not reflected clearly in the minutes, Ms. Makaiwi mentioned another factor that inclined the board away from accepting the telex as sufficient. This was a reference in the telex to Ms, Holmes' employment as a "part time'. hairdresser for the previous 8 years. The board was uncertain whether 8 years "part time" could equate with 3 years "full time" as the statute appeared to the board to require.

The board voted against accepting the telex, but further decided to seek a legal opinion on the matter. The minutes reflect a meeting with Assistant Attorney General Griesmann that afternoon. He concurred with the board action and agreed to document his opinion, upon board insistence.

The actions, or inactions, of the board prompted Lt. Holmes, as his memo had promised, to take the licensing case up with a number of senior staff members in the Governor's Office, He testified that he also saw the Lt. Governor as well as the board's counsel Griesmann. His complaints did not go without sympathy. Defendants testified that they variously began to receive repeated telephone calls at their respective places of employment, from different staff members regarding the delay in approval of plaintiffs' license applications.

The position of the staff members was explained in the testimony of Ms, Cher Vink, Special Assistant to the Governor. She testified that the license application matter came to her attention some time in late February or early March, 1986. The application and the Cosmetology Board was the subject of several discussions with the staff. There was dissatisfaction expressed over public complaints about frustrating delays in the licensing procedure.

On the other hand, the given by the testimony of board's concern, as defendants, was the [7ASR2d35] staff's inordinate interference with the board's duties over this particular application. Ms. Makaiwi testified that this particular application was the subject of more board meetings than any other she could recall, in the attempt to accommodate plaintiffs.

Added to the board's perceived difficulties was confusion over the fact that their counsel had not only failed to give them the written opinion expected, but had also changed his opinion of the sufficiency of proofs. (Mr. Griesmann had departed the territory by the time of trial, however a transcript of his earlier deposition was stipulated for admission into evidence.) Counsel's change of mind came about after having been presented by plaintiffs' counsel, William Reardon, a photocopy of Ms. Holmes' Washington State Cosmetology license. He deposed that this appeared to be sufficient information upon which to grant a license.

The board next met on March 14, 1987 and according to the exhibits in evidence, Attorney Reardon had earlier presented Ms. Makaiwi the Washington State license of Ms. Holmes, and left her a copy thereof. Presumably, this copy was before the board's consideration in their meeting of March 14, 1987, but it apparently did not weigh sufficient with the board as demonstrating the practical requirement, notwithstanding counsel Griesmann's views. The minutes of that day contain the following entry:

The Board has not yet received from both Mrs. Carol Holmes 
and Mrs. Bobbie Sue Ferstle their official working experience
references as they were asked by Chairman Makaiwi. 
(Emphasis theirs).

The events of March 14, 1986 did not conclude here. The board decided to tell their side of the story to the Governor. Ms. Lefiti and Ms. Howland met on behalf of the board that same afternoon with the Governor. The agenda earlier determined and presented to the Governor was: the board's request for new counsel; the board's complaint about the active role taken by certain of the Governor's staff in the case of plaintiffs' license application; and finally certain concerns of the membership regarding the legality of the board's then composition and uncertainty over the tenure of [7ASR2d36] 3 of the members. Two of these matters require further elaboration.

Counsel Griesmann's change of position revived with the board an old tension in their relationship with counsel, giving rise to membership questions regarding, and we quote, "his loyalty". The board had on earlier occasions requested of both the Governor and the Attorney General assignment of different "impartial" counsel. The board had considered counsel Griesmann to be unresponsive on earlier occasions and at times unable to discriminate his duties to the board from his other role as director of the Consumer Protection Bureau in situations of conflict. (5)

In the area of membership makeup and tenure uncertainty, the board's concerns were as follows. The BCA requires that at least 2 board members be licensed operators. In fact, the board as then constituted had one such member, Ms. Lefiti. The board suggested to the Governor that either Ms. Makaiwi or Ms. Howland would offer to resign to permit the appointment of one other licensed operator. The membership recommended Ms. Dorothy Tarasawa. Secondly the board pointed out what was to them a typographical error in the Executive Memorandum containing the formal appointments of its most recent members, namely, Ms. Howland, Ms. Galea'i, and Mr. Ivi Peneueta. This Executive [7ASR2d37] Memorandum #002-1986, dated January 2, 1986 had provided term expiry dates for all the 3 new members as being March 20, 1986, which literally meant tenure of some 77 days, and not reflecting the 3-year staggered terms required by the BCA. The board requested that corrective action regarding the apparent oversight be taken accordingly.

As it happened, the Governor's staff had a different approach in rectifying these composition concerns, and more will be said of it later.

As noted above, notwithstanding production of Ms. Holmes' Washington license, and attorney Griesmann's opinion thereon, the board in its meeting of March 14, 1986 was unpersuaded that the proofs (i.e. the telex and Ms. Holmes' Washington certificate) had sufficiently demonstrated 3 years of practical experience.

This conclusion appears to have been anticipated by Ms. Holmes. At her request, a letter under United States Coast Guard letterhead, dated March 10, 1986, was mailed to Ms. Holmes bearing the following communication: "In reference to your telephone call this date. This letter is to certify to the fact that you were employed as a hairdresser with the CG Exchange for the past eight years." The letter was signed by W.H. Hoit, Chief Warrant Officer, and with the notation: "By direction".

On or about March 17, 1986, Ms. Holmes supplied her lawyer, Mr. Reardon with the said letter along with her written instructions indicating a desire to conclude the license that day with the hope of opening for business on the following. In accordance with his client's request, Mr. Reardon visited Ms. Lefiti at her salon that day (Ms. Makaiwi was at this time absent from the territory) to discuss the letter from the Coast Guard. Ms. Lefiti refused to discuss the matter at the time and advised counsel to await the return of board chairman Makaiwi. On the other hand, counsel persisted in attempting to persuade Ms. Lefiti to sign something.

The exchange ended on a less than cordial note. Ms. Lefiti in her testimony reacted to being, in her words, "harassed " by counsel at her salon while she was working on a customer with [7ASR2d38] chemicals. She refused to sign some" paper which counsel was insisting she sign. The Court learned nothing further of this piece of paper.

On the following day, counsel prepared a letter addressed to the Cosmetology Board demanding that the board convene within 48 hours with notice to his clients and for the board to sign the business license application. The letter was delivered to Ms. Lefiti on March 19, 1986 with distribution list to: the Governor's Office; Mr. Griesmann; and board members.

Paper was met with paper. A letter was prepared by Ms. Howland and dated March 20, 1986, signed by both herself as Secretary and by Ms. Lefiti as Acting Chairperson. The letter was addressed to the Attorney General with a corresponding distribution list, including Mr. Reardon. The letter set out the board's reasoning in not accepting the telexed message, and further acknowledged the Coast Guard letter of March 10, 1986, which would be acted upon only by the board when it convened after the return of the chairman in the following week. The letter further noted the board's refusal "to be directed, and intimidated by Mr. Reardon's time frame of 48 hours for the Board to convene." It concludes with reiteration of the request for different counsel.

From this point in time, the licensing saga is next placed at the Governor's Office. We above noted the board's concerns regarding composition and tenure and its recommendations for corrective action. The staff action taken in connection herewith was altogether different. Another Executive Memorandum, #37-86, was prepared and presented to the Governor for execution and made effective March 20, 1986. The memorandum had the effect of removing the three "short term" appointees, while substituting three new members, including the prior board's recommendation of Ms. Tarasawa.

The following day produced a bizarre turn of events which placed the Governor in a compromising situation. Ms. Lefiti testified that she had received a telephone call from one of the secretaries at the Governor's Office to assemble the Cosmetology Board for a meeting with the Governor on March 21, 1986. She was given no idea what the agenda might be and accordingly the rest [7ASR2d39] of board (as Ms. Lefiti still believed them to be) was equally in the dark as to the purpose of the meeting. Similarly, counsel Griesmann was notified of the meeting and his deposition reveals that he had no idea of the purpose thereof.

On the evidence, the Governor was only expecting to formally announce and greet the newly constituted board as had been a practice in the past. On the other hand, Special Assistant to the Governor Lydia Faleafine testified that in the normal course of announcing new memberships on boards and commissions, the practice has been to notify outgoing members first, before announcing the incoming members. This did not happen in this instance and Ms. Faleafine was at a loss as to why there was a departure from practice.

As it happened, a number of people congregated at the waiting lounge of the Governor's Office without any concerted idea as to the purpose of the gathering. They comprised the old members of the board, the new members, and attorneys Griesmann and Reardon.

At the actual meeting with the Governor, Ms. Lefiti was the only old board member called to attend, along with the new members as well as counsel. Certain of the replaced and excluded members, upon ascertaining the situation, were vociferous in expressing disgust with the whole affair as a humiliation and a waste of time away from normal routine. Further, in reaction to a number of matters associated with plaintiffs' licensing case, Ms. Howland had taken along to the meeting a strongly worded letter of resignation, which became more opportune for tendering at the time.

Inside the Governor's Office, the meeting also escalated to a lively discussion tone, and while the evidence was not clear on how the matter arose, the merits of plaintiffs' license application became a part of the agenda. The Governor rightly prevailed by deferring the issue to the new Cosmetology Board and closed the meeting. We find [7ASR2d40] no further evidence of staff involvement after this date. (6)

One further matter for mention, which is chronologically contextual at this point is that Mr. Paul's opened its doors for business as a "barber shop" .While plaintiffs' efforts to secure board approval continued to remain pending, the dialogue between counsel gave rise to the suggestion that a business license be also sought to operate a barber shop. Mr. Griesmann took the view as the Consumer Protection Bureau Director that barber shops were not covered by the BCA, and in point of fact, the Cosmetology Board had subscribed to this policy. (7) Ms. Makaiwi testified [7ASR2d41] that she was contacted by the Development Planning Office on the barber shop application, and she declined jurisdiction.

A barber shop license was issued on March 20, 1986, and on March 22, 1986, plaintiffs resumed business.

We come now to March 24, 1986, and a new set of characters enter the picture. Police Officer Marlene Moana visited Mr. Paul's on this day where she encountered Ms. Holmes working with a customer. In Officer Moana's words, she observed Ms. Holmes using a "curling iron" to curl hair and determined that Ms. Holmes was acting in violation of the BCA. She placed Ms. Holmes under arrest and took her to the police station. At the station Ms. Holmes, with the attendance of her counsel, Mr. Reardon, was put through the booking procedures and then released. The officer prepared and forwarded her report to the Attorney General's Office with the recommendation for prosecution.

Officer Moana expressed her disappointment as a police officer that the Attorney General's office had chosen not to prosecute. She testified that on the day prior to the arrest, she was summoned by the Commissioner of Public Safety and was assigned to investigate complaints about certain people undertaking hairdressing work without the appropriate approvals from the Cosmetology Board. In the course of her investigation, she researched the BCA and searched the licensing records at the Office of Development Planning, talking to a Mr. Petelo Uti. Mr. Uti referred her to defendant Makaiwi as someone from the Cosmetology Board to interview. She interviewed Ms. Makaiwi, and in relation to Mr. Paul's, Ms. Makaiwi informed her that the owner Ms. Ferstle had applied to the board for a license to operate a beauty salon facility and was turned down. She was, however, aware that Ms. Ferstle had a barber shop license. With regard to Ms. Holmes, the board had also turned down her application for a hair styling license.

As a result of her investigations, Officer Moana visited three establishments, including Mr. [7ASR2d42] Paul's, where the arrest was made. At the other places she visited, the officer found the facility located at the Pago Plaza center open, but without customers. She also visited a shop at the Rainmaker Hotel and found the same locked in the morning. She again checked this shop in the afternoon, and while it had opened, she found no customers there at the time.

Ms. Holmes testified that while no force or verbal abuse was used by the officer in effectuating arrest she was extremely upset and afraid over the whole thing. She was convinced in her mind that the police were sent to the shop by the Cosmetology Board to harass her and Ms. Ferstle. She suffered bouts of insomnia after arrest and was unable to settle down with any comfort at work. The fear associated with the experience visited her recurringly and about a week after the arrest she took a vacation off-island.

Ms. Holmes returned from vacation and was uncertain about wanting to return to work. She did at some time decide to go back to Mr. Paul's but was not hired again. She stated that her relationship with Ms. Ferstle had deteriorated and she worked for some time at another facility and did not continue for too long thereafter. She has resigned that it is not necessary for her to work again and relive the possibility of encountering the police again. She is aware that sometime in May, 1986, a conditional license was eventually given by the board but she has ceased from practicing since October or November, 1986.

We find the next meeting of the board, newly reconstituted, as having taken place sometime in early April 1986. The Court was not provided minutes of this meeting; at the same time, the oral testimony overlapped indiscriminately with dates and time frames. The Court was, however, supplied minutes for a 4/25/86 meeting and a 8/27/86 meeting. Unfortunately, these minutes are not free of dispute. First, Ms. Makaiwi as chairman and Ms. Annesley Dalton as the new secretary are at odds over whether the 4/25/86 minutes were supplied to and approved by the board. Second, the minutes themselves are contradictory in details of dates of prior meetings, prompting reservations about contemporaneity in their preparation. [7ASR2d43]

We gather, however, on the evidence that a meeting took place in early April, 1986 to consider the Coast Guard letter dated March 10, 1986 which attorney Reardon had taken up earlier with Ms. Lefiti.

Yet again, the board was not moved. Questions were raised focusing on the apparent conflict between the text of this letter and the text of the prior telex. Whereas the telex alluded to "part time" employment of Ms. Holmes with the CG Exchange, the letter which followed dropped the reference to "part time". The board resolved to inquire into the discrepancy themselves.

A letter was to have been written and sent off on behalf of the board to clarify Ms. Holmes' Washington State work experience. Ms. Makaiwi was of the understanding that Ms. Annesley-Dalton would write the letter. Ms. Annesley-Dalton however was of the understanding that Ms. Makaiwi, as chairperson, would write the letter. In the interim, the annual Flag Day had arrived and necessarily, Ms. Makaiwi, as an employee of the department responsible in Flag Day preparations, did not call a board meeting until April 25, 1986.

At the 4/25/86 meeting of the board, the mixup with letter writing was confronted, and it was resolved that Ms. Makaiwi would compose a letter to be sent by registered mail, with each board member contributing $1.00 for postage. A letter went out under date April 26, 1986 to the board's Washington State counterpart, seeking verification that Ms. Holmes has had three years previous working experience and that she holds a current license with Washington.

We find another letter dated May 9, 1986 from the chairman of the board and addressed to Ms. Holmes referencing a board meeting of May 3, 1986, whereby it was decided that a provisional license be issued to Ms. Holmes, subject to verification of practical background. No minutes were supplied us of this meeting for details.

A business license was eventually issued to Ms. Ferstle to operate Mr. Paul's as a beauty salon subject to the conditional nature of Ms. Holmes provisional license, and subject to Ms. Holmes' remaining to work with Mr. Paul's to satisfy the [7ASR2d44] BCA's requirement that no facility license may be granted without a licensed operator aboard.

DISCUSSION

Our initial conclusion on the facts is that much of the tedium that arose with the evidentiary hearing in this matter could have been avoided if the parties had taken a little more time and effort with adequate pre-trial discovery. The defendants, while acquiescing in plaintiffs' trial setting requests, were content with a series of piecemeal summary judgment motions (even at the eve of trial) with apparently little concern for factual background investigation.

Plaintiffs on the other hand took much trial time to dwell on some potential theories which the evidence came no where close to sustaining. Consequently, the issues were ill defined and to the close of arguments it was apparent to the Court that plaintiffs' claims concerned the entire spectrum of any and all conceivable constitutional violations which might be subject to the remedial provisions of the federal Civil Rights Act, 42 U.S.C. sections 1983 and 1985. It was further suggested that there were remedies of a local nature which may arise, or ought to arise, by analogy with the mentioned civil rights enactment.

We turn to those theories of plaintiffs which should not have been considered had there been adequate pre-trial discovery.

The first of these would concern deprivation of rights through the board's alleged "revocation" of plaintiffs' licenses without procedural due process. As might be gathered from the above, there was much oral testimony, both direct and in rebuttal, concerning the date and time frame of the initial license application. The significance of this fact was that plaintiffs took the position that when they had first met with defendant Makaiwi, all other relevant government agencies had signed off their respective approvals on the license application. Plaintiffs were also sure that Ms. Makaiwi had signed in approval as well, and thus, they claim that a license was granted. It is claimed that they accordingly opened for business on Valentine's Day only to have their license revoked a few days afterwards when Ms. Makaiwi called to advise that a license could not [7ASR2d45] issue. In response at trial, Ms. Makaiwi was examined at length and testified to the contrary.

This dialogue on the stand, as it turned out, was entirely unnecessary had either party initially focused on the information given in the written license application itself. (8) This document revealed that neither Ms. Makaiwi nor the other agencies had at the time signed off on the application, hence the possibility of a license grant never occurred. A "revocation" without procedural due process argument therefore was totally misplaced. There was never a license to revoke in the first place.

Secondly, much of plaintiff Holmes' efforts centered on alleged deprivations consequent to arrest. We assume that the rights claimed as infringed concerned unlawful restraint of liberty and unreasonable search. (9) As it happened, the arresting officer was not made a party to the proceedings; therefore any actionable conduct by the officer would have to be attributed to the named defendants as co-conspirators, or imputed to the said defendants upon some cognizable theory of vicarious liability. Against this, the only direct evidence presented by Ms. Holmes was to the effect that she was sure in her mind at the time that the police had been sent by the Cosmetology Board to harass her and Ms. Ferstle.

The evidence of Officer Moana, on the other hand, which would have been available on pre-trial discovery, was that: the Commissioner of Public Safety had directed her to instigate the investigation a day or so before hand; she researched the BCA herself for the enactment's [7ASR2d46] requirements; her initial inquiries with the license records office referred her to, and led her to interview, the defendant Makaiwi; she investigated a number of salons on the day in question, including Mr. Paul's; while at Mr. Paul's, and based upon her own visual determination that a misdemeanor was being committed, she executed the arrest. (10)

After examining Officer Moana's written investigation reports, we find nothing untoward her testimony given. Even Ms. Holmes retracted noticeably on the stand, when asked about her impressions of Officer Moana's testimony. Plaintiffs had no evidence, apart from intuition, approaching a conspiracy theory.

For reasons of insufficient evidence, the Court rejects all claims against defendants premised on the hypothesis of conspiracy, collusion, or otherwise acting in concert with the arresting officer.

We are further unable to find on the evidence any issue of equal protection. There is nothing to suggest "purposeful discrimination", Snowden v. Hughes, 321 U.S. 1 (1944), let alone evidence of any discrimination at all whether purposeful or otherwise. Nor do we find anything in the board's withholding of the license as being "completely arbitrary and discriminatory" so as to constitute a denial of equal protection. Niemotko v. Maryland. 340 U.S. 268 (1951). Plaintiffs contend that while they had supplied to the board all the information which the board required, the license was nonetheless refused; from this plaintiffs infer a violation of equal protection in that they regard themselves as having been treated differently than others similarly situated. The evidence was to the contrary.

First the BCA standards governing license qualification or eligibility are clearly articulated, and the validity of these standards is not challenged. Section 31.1504 of the BCA (A.S.C.A. § 31.1504) reads in pertinent part:[7ASR2d47]

(a) An operator may be licensed as a hairdresser and cosmetician 
provided the person is of good moral character; and 
(1) is currently licensed to practice hairdressing in any state of 
the United States and has practiced as an operator for 3 out of 
the 5 years immediately preceding the application for licensure.

In the case of Ms. Ferstle, there can be no dispute with her ineligibility for licensure as an operator as she had only recently obtained certification from the State of California. She lacked practical standing.

Ms. Holmes on the other hand satisfied the first requirement of the enactment, to wit: currently licensed in another state. She was further required to demonstrate three years of practice within the preceding five year period. There is nothing mystical nor abstruse about this legislative directive and the standard having being legislative prescribed, what remained for the Cosmetology Board was a determination of factual issues and the application of the statutory criterion to them. The evidence was quite clear that plaintiffs were informed throughout the application process that the issuance of their licenses could not take place until they demonstrated that they had met one of the established standards, the practical experience requirement. Again, we stress our inability to find anything complicated about this standard that would require further elaboration by way of regulation or otherwise.

In viewing what plaintiffs had supplied the board, we find nothing arbitrary or capricious with the board's conclusions of insufficient showing. (11) We also note that the board is a fact finding body with a quasi judicial function, charged with the [7ASR2d48] responsibility of examining qualification as legislatively prescribed. The board cannot be merely perfunctory in its duties given the social dangers which brought about the need to regulate the beauty treatment industry. The licensing of people who propose to work on the public with chemicals cannot, and should not, be undermined as a mere formality. As noted on the evidence, the Fono did not act on a perceived danger (beauty treatment was hardly culturally ingrained in the early 1970s) but on an actual and serious complaint. Further, the importance of maintaining proper implementation of the statute was again brought home vividly with the recent revocation of a license owing to another instance of severe chemical burns suffered by a member of the public.

In response to advice from the board for proof of practical experience, Ms. Holmes first presented a telex from the Coast Guard to certify that she had been employed by the Coast Guard Exchange for the past eight years as a "part time" hairdresser. This was not acceptable to the board for reasons above discussed. Again in response, Ms. Holmes subsequently supplied a letter from the same Coast Guard official with two variations to the content of the telex. That is, the reference to "part time" is dropped, and the official signed off with the notation "By direction." These variations are not without question. Ms. Holmes also supplied a copy of her State of Washington license which certified "standing" alone but not "practice." Again this was insufficient to the board, notwithstanding an intolerable amount of outside pressure to approve the licenses. The board stuck to its opinion and undertook to do some cross checking itself. It was either cross checking or a relenting to pressure that eventually gave rise to a provisional license.

Suffice it for us to say, however, that the conclusions arrived at by the Board cannot be said to have patently weighed against the proofs offered.

We accordingly conclude against any denial of equal protection.

We look to the remainder of plaintiffs' due process claims. As held above, plaintiffs' claims of due process denial based on a license "revocation" situation are without foundation. [7ASR2d49] Alternatively, plaintiffs have contended that the board had failed to provide them a hearing and thus an opportunity to be heard on the board's refusal to issue the licenses. This argument asserts a denial of procedural due process and presupposes that plaintiffs have a "property" and a "liberty" interest in the licenses sought, as these terms appear in the language of the Fourteenth Amendment.

Assuming that plaintiffs have such a protected interest, we hold for reasons given below that there was not a denial of due process in the circumstances.

It was explained by the Supreme Court in Mathews v. Eldridge, 424 U.S 319, 334 (1976) that

[d]ue process, unlike some legal rules, is not a technical 
conception with a fixed content unrelated to time, place and 
circumstances. (Citation omitted.) [It] is flexible and calls 
for such procedural protections as the particular situation 
demands.

Noting that the judicial model of an evidentiary hearing was neither required nor appeared to be the most efficacious method of decision making, the court generally stated that "the essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and an opportunity to meet it." Id. at 348. Thus the requirements of due process contextually vary with the circumstances and the particular demands of the case. The only constant factor apparent with the Court in the review of its prior decisions is "that some sort of hearing is required before an individual is finally deprived of a property interest," Id. at 333 (emphasis added). See also Parratt v. Taylor 451 U.S. 527, 540 (1981). The opportunity to be heard is an opportunity which must be granted "at a meaningful time and in a meaningful manner." Mathews, supra. In Parratt, the court took care to point out that "at a meaningful time and meaningful manner" did not always mean a hearing opportunity prior to the initial deprivation of property. In Mathews a pre-deprivation hearing was seen as the exception "from the ordinary principle, established by [the] decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." Id. at 343. [7ASR2d50]

In the light of these observations, we find on the factual circumstances before us that plaintiffs were in fact accorded more process than due. Firstly, there was no adverse administrative action by the Cosmetology Board that constituted a "final" deprivation of property that would trigger the due process requirements of notice and an opportunity to be heard. We find nothing suggestive on the evidence that the Cosmetology Board's actions were tantamount to a denial of the license. Indeed, the resultant procedure utilized by the board approximated notice and the opportunity to be heard. Plaintiffs were advised from the outset, not only by the clear mandates of the BCA but by Ms. Makaiwi, that plaintiff Holmes would have to demonstrate proof of the BCA's practical requirement. Ms. Holmes supplied a telexed communication which the board promptly considered. Plaintiffs were advised of the board's findings of insufficiency and the proceedings did not conclude there. Plaintiff Holmes then tendered a further Coast Guard communication as well as her Washington State license. Again the board gave consideration to these proofs and finding the same to be inconclusive of the BCA's criteria, their decision was made known to plaintiffs. Yet again, the proceedings did not terminate there. The board had not issued a denial and the proceedings were open to further submission of proofs. (12) Had the board [7ASR2d51] proposed any final action to deny the application, a due process proceeding would then be required, See A.S.C.A. § 31.1508, and the hearing demanded by plaintiffs would be appropriate. Mathews v. Eldridge, supra; Parratt v. Taylor. supra.

Indeed, the interim procedures utilized by the board were constitutionally sufficient when considered in the light of the criteria announced in Mathews, 424 U.S. at 335, namely; (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and th"e fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The private interest concerned in this matter is a benefit in expectation subject to articulated standards of qualification. Proof of this qualification is within the plaintiffs' control and any prejudice due to delay is also within that control. As plaintiffs were initial applicants they suffered no prejudice or loss through a change in status owing to any action or inaction on the part of the board that is apparent on the evidence. Indeed, the benefit under consideration is even more contingent than the benefit considered in Mathews. supra. In Mathews, the benefits considered were medical disability payments which were terminated through an interim procedure pending further investigation and showing of a continuing medical disability. In a sense, this was an accrued benefit and not one in expectation.

Turning to the second criterion, we cannot conclude that there was a risk of erroneous deprivation of interest owing to the procedures used by the board. As stated above, the procedures afforded procedural due process although undertaken in a piecemeal fashion. Plaintiffs were advised of the needed showing, and responded with a series of [7ASR2d52] proofs. In turn they were appraised on the inadequacies of the tendered proofs.

In any event, we do not see how the board's resultant conclusions could have been otherwise even if the opportunity to be heard had been granted in the manner now demanded by plaintiffs rather than in the way the situation actually unfolded. The only proof tendered with this demand was the referenced Coast Guard letter transmitted "By direction" and so blatantly at variance wi th the content of the prior telexed communication. In these circumstances, it is not for the Court to say that a reasonable fact finder could not have. concluded as did the board.

Finally in terms of territorial interest and fiscal considerations, we do not find that the proceedings initially used by the board are without place. As stated in Mathews, 424 U.S. at 348, "[t]he ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness." It is consideration of administrative efficiency as necessarily limited by the standard of fairness.

With the Cosmetology Board's procedures, the majority of the cases ought to be settled without the need for a judicial type hearing. If the BCA's objective standards are met, there is no discretion with the board but to issue the license. See A.S.C.A. § 31.1503(a). As noted above, there is nothing difficult about these standards, and in the normal course, license approvals would be straight forward if applicants show ready compliance with the burden of proof expected of them. It follows therefore that the need for a judicial type hearing on every application, with attendant consumption of time, money, personnel and the like, is not optimum. These hearings are only required when proposed board action is to be final. This is our reading of A.S.C.A. § 31.1508 and as long as there is room for administrative efficiency ---the board keeping its proceedings open for further consideration of proofs ---without compromising fairness, the requirements of procedural due process will not have arisen.

We conclude that an evidentiary hearing was not required herein and that the board's proceedings were fully in comport with due process. [7ASR2d53]

For the foregoing reasons judgment is entered in favor of the defendants.

APPENDIX "A"

TO: COSMETOLOGY BOARD 
SUBJ: PROOF OF EMPLOYMENT

1. THE ENCLOSED, IS A MILITARY COMMUNICATIONS DISPATCH SENT FROM THE COAST GUARD COMMUNICATIONS CENTER IN SEATTLE WASHINGTON. AS THE PERSONNEL IN THE OFFICE OF COMMUNICATIONS WILL VERIFY, IT CAN NOT BE FORGED AND A LASTING RECORD OF IT IS AVAILABLE UPON REQUEST THROUGH THE U.S. MILITARY. IN ADDITION, I HAVE NOTARIZED THE COPY AS A DULY DESIGNATED NOTARY UNDER FEDERAL LAW. I HAVE ALSO TAKEN THE TROUBLE OF CHECKING THE VALIDITY OF THIS DOCUMENT WITH THE OFFICE OF THE GOVERNOR. THEY STATED THAT IT IS QUITE ACCEPTABLE AND THAT IF ANY PROBLEM ARISES OVER ITS ACCEPTANCE, I SHOULD LET THEM KNOW. THANK YOU FOR YOUR ASSISTANCE ON THIS MATTER. IF THERE ARE ANY QUESTIONS ABOUT THE DOCUMENT, I WOULD BE HAPPY TO ANSWER THEM. 
/s/LT J.M.HOLMES

**********

1. A.S.C.A § 27.0209.

2. A.S.C.A § 27.0212.

3. A.S.C.A § 31.1504, Licensure of Operators.

4. A.S.C.A § 31.1505, Licensure of Beauty Salons.

5. The merits of the board's complaint are not at issue and warrant no comment from the Court, save to the extent that we need to mention the fact that a strain in relationship occurred. This is not to take anything away from counsel. His situation in the Territory highlights the peculiarities of a small community attempting to rise to meet growing demands of the modern day, necessitating a greater degree of multifarious roles being imposed upon individuals often without any corresponding increase in personal economic gain. Just a few years back, there was no Board of Cosmetology or Consumer Protection Bureau. Ironically, the members of the board, as is the case with those of other executive commissions, are themselves volunteers and have taken on these added duties in the name of civic responsibility.

6. The involvement of the Governor's staff in the licensing proceedings was inappropriate. Given the above-noted 1983 Amendment to the BCA, licensing jurisdiction under the enactment was vested in a Cosmetology Board, created to displace the Governor's office from involvement in the Act's administration.

7. This policy is interesting, although somewhat curious. The term "hairdresser" as defined in the BCA ostensibly extends to what barbers traditionally do, that is, "cutting... the hair of another person". See A.S.C.A. § 31.1502(e). However the effect of policy has been to recognize or establish a special classification, "barber", as exempted from the regulatory scope of the BCA. The terms "barber" and "barber shop" do not appear in the BCA although counsel has referred us to certain health regulations in the American Samoa Administrative Code §§ 25.0201 et seq., where the terms "barber" and "barber shop" are in fact defined and respectively treated as synonymous with the terms "beautician" and "beauty parlor." These regulations were promulgated in 1964 by the Director of Health pursuant to the Facility Health Permits Act, now A.S.C.A. § 25.0501. This enactment has nothing to do with regulating, as a profession, barbers and beauticians. Its primary purpose is sanitation measures with facilities involving the public at large. Through the regulations, it requires, among other things, bathrooms with barber shops and beauty parlors. Hence the Health Department's involvement with the approval process of plaintiffs' application.

8. This document was admitted into evidence towards the end of trial, over defendants' objection, as an attachment to certain police reports moved into evidence for other purposes.

9. Cf. Stogner v. Kentuckv, 638 F. Supp 1 (W.D. Ky 1985). A warrantless search may be conducted of a pervasively regulated business or closely regulated industries [such as barbershops] long subject to close inspection and supervision. See also A.S.C.A §§ 31.1508, 31.1510.

10. 46 A.S.C.A. § 46.0805(4) not only authorizes a police officer, but makes it his duty, to make a warrantless arrest when a misdemeanor is committed in his presence.

11. A reviewing court would probably have to take heed of the doctrine of primary jurisdiction. The social dangers prompting legislative regulation of the profession were significant. The regulatory board comprises not only a cross section of society but members of the profession themselves.

12. We are not unmindful of the possibility that an administrative agency might resort to recurring delay tactics which in the proper circumstances may amount to a denial of protected rights, but we do not feel that the circumstances here were such. Plaintiffs themselves could not escape blame for the delay as the burden was on them to expeditiously supply sufficient proofs as required by the BCA. See A.S.C.A. § 31.1503(a). On the contrary, it appears that plaintiffs gave up on further pursuit of proofs after supplying the referenced Coast Guard letter and were content to allow the licensing exercise to escalate to one of third parties ---the Governor's staff, the board's attorney, the new board membership, the Governor ---attempting to impress upon the board that the submitted proofs were sufficient. The board on the other hand rather than issuing a "denial" then, as it could have, took upon itself the burden of seeking those proofs, and hence kept its proceedings open for further action and the opportunity to be persuaded otherwise.

Workmen's Comp. Comm’n; Star-Kist Samoa, Inc. v.


STAR-KIST SAMOA, Inc., and TRAVELERS
INSURANCE Co., Plaintiffs

v.

WORKMEN'S COMPENSATION COMMISSION, Defendant

MANUIA PEl, Real Party in Interest

High Court of American Samoa
Trial Division

CA No. 111-87

June 17, 1988

__________

Adoption of child subsequent to natural parent's injury and death does not affect child's right to receive death benefits under workmen's compensation laws, since legal relationship of natural parent and child existed at time of injury and death.

Workmen's compensation claimant's proof of existence of injury and of employment relationship raises presumption that claim falls within coverage of workmen's compensation laws and shifts to employer the burden of proving by substantial evidence that employment did not cause the injury. A.S.C.A. § 32.0642.

Workmen's Compensation Commission decision should be overturned on appeal only if it is not in accordance with the law. A.S.C.A. § 32.0652.

Workmen's Compensation Commission decision should be upheld by reviewing court if supported by substantial evidence, whether or not the court would have reached the same conclusion from the evidence as the commission did. A.S.C.A. § 32.0652.

Court will not disturb Workmen's Compensation Commission decision if record contains evidence from which a reasonable person could conclude that the injury and death were work-related and it does not appear that the commission arbitrarilyand capriciously disregarded substantial evidence to the contrary. A.S.C.A. §§ 32.0642, 32.0652. [7ASR2d150]

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendant, Caroline B. Crenna, Assistant Attorney General
For Real Party in Interest, Charles Ala'ilima

Alofagia Sa'o made her living cleaning fish at the Star Kist tuna cannery. One Thursday in early 1985 she left the cannery before the end of her , shift after a spell of dizziness and fainting) and she missed work again on Friday. On Saturday morning she began to convulse and lapsed into a coma, and she died of cardiac arrest a day later. The attending physician at the L.B.J. Medical Center concluded that Alofagia's heart attack had been caused by severe bacterial meningitis, an inflammation of the membranes of the brain.

Malala Pei later brought a claim for death benefits under the workmen's compensation laws on behalf of Alofagia's minor son, Manuia Pei. (1) The Workmen's Compensation Commission held a hearing at which the claimants presented the testimony of Dr. Aloiamoa Enesi, the physician who treated Alofagia, and of Mrs. Pei. Alofagia's employer and its insurer contested their liability by arguing that the claimants' evidence contained no indication that the disease was work-related. The Commission determined that Alofagia had contracted the bacteria that caused her death while acting within the course and scope of her employment, and on the [7ASR2d151] basis of this factual finding it awarded benefits to Manuia. Star-Kist and Travelers now seek to have the Commission's decision overturned.

The Fono has provided for the payment of compensation for any injury arising out of and in the course of employment and has delegated to the Workmen's Compensation Commission the authority to hear and determine all questions posed by such claims. A.S.C.A. §§ 32.0520, 32.0636(a). Once a claimant appearing before the Commission has shown the existence of an injury and an employment relationship, a presumption arises that the claim lies within the coverage of the workmen's compensation laws. A.S.C.A. § 32.0642; Saunoa v, Workmen's Compensation Commission, 2 A.S.R.2d 43 (1985); Hartford Fire Insurance Co. v. Workmen's Compensation Commission, 1 A.S.R.2d 57 (1981); N§§H Amsterdam Casualty Co. v. Hoa££te, 46 F.2d 837, 838 (D.C. Cir. 1931). The presumption operates to shift to the employer the burden of proving by substantial evidence that the injury was not caused by the employment.

Once the Commission has resolved a claim, that decision should be overturned on appeal only if it was "not in accordance with the law," A. S. C .A. § 32.0652, and a commission decision, whether for or against the claimant, will withstand challenge if it was supported by substantial evidence. Continental Insurance Co. v. Workmen's Compensation Commission, 7 A.S.R.2d 105 (1988) (CA No.141-87, opinion issued March 7, 1988).

Nobody would dispute that Alofagia's death would be compensable if it could be established as a certainty that the fatal streptococcus entered her body while she was at work inside the Star-Kist facility. Of course it will nearly always be impossible to pinpoint the time and place of a bacterial infection. Yet that is the question that the Commission had the statutory duty to resolve in this case, by resort to the evidence presented and any reasonable inferences available therefrom. So long as the record contains evidence from which a reasonable person could conclude that Alofagia's death was work-related, and it does not appear that the Commission arbitrarily and capriciously disregarded substantial evidence to the contrary, we will not disturb its decision. [7ASR2d152]

While necessarily circumstantial, the evidence presented to the Commission was sufficient to support the conclusion that Alofagia contracted the disease while at work. The doctor who treated her testified that her heart attack resulted from bacterial meningitis and that the disease has a relatively brief incubation period, probably less than a week. The bacteria that cause this disease flourish in hot, damp areas. Alofagia worked in an environment that the Commission apparently believed especially conducive to the growth of these bacteria. There was further evidence that Alofagia lived in a house that was used as part of a government education program which enforced cleanliness standards, that the house was in fact cleaned every day, and that it was therefore less likely that the bacteria had come from her home. (2) This cumulation of evidence is not overwhelming, but neither is it too flimsy to support the Commission's inference that Alofagia contracted the disease at work.

The plaintiffs argue that the claimants below did not produce evidence sufficient to trigger the statutory presumption of work-relatedness and that there was substantial evidence tending to disprove [7ASR2d153] causation. They cite New Amsterdam, supra, for the proposition that the presumption disappears when there is evidence that the employee died away from the workplace. This overstates the point of that decision, which is that "[i]f substantial evidence [disproving causation] is introduced, and no other evidence is introduced in behalf of the claimant, the presumption must gi ve way." Id. at 838 (emphasis supplied). This is not such a case. The plaintiffs also contend, purporting to quote Pacific Employers Insurance Co. v. Industrial Accident Commission, 122 P.2d 570 (Cal. 1942), that the presumption does not apply unless the evidence shows that "it was quite probable, and in fact almost certain that the employee contracted the disease while engaged in his duties." A careful scouring of the opinion yields neither those words nor that idea. Nevertheless, the guiding principle of that case is germane to the resolution of this one:

It is not the function of this Court to weigh conflicts in the evidence.

"[C]ertainty is not required. It is not even required that the award
be, in our judgment in accord with the preponderance of the evidence,
in order that we be not at liberty to annul it. We cannot disturb the
award unless we can say that a reasonable man could not reach the
conclusion which the commission did."

Id. at 572-73, quoting City and County of San Francisco v. Industrial Accident Commission, 191 P. 26, 29 (Cal. 1920).

This is not a case that requires us to decide what would result if the claimants had relied only on the presumption in the face of the employer's evidence against causation. The Commission had before it evidence from which a reasonable person might have concluded that Alofagia Sa'o died from a disease she contracted in the workplace. In that situation it is never appropriate for the High Court to reweigh what the Commission has already weighed. The complaint is therefore dismissed.

**********

1. Malala Pei adopted Manuia after Alofagia's death. Since the legal relationship of parent and child existed at the time of injury and death, the subsequent adoption did not affect the child's right to compensation. Cf. Austin Co. v. Brown, 167 N.E. 874 (Ohio 1929) (a widow who remarried after her husband's death from work-related injury was not thereby barred from receiving workmen's compensation, since dependency was to be determined as of the time of the injury).

2. This is not to say that the evidence supporting the Commission's conclusion was the only evidence in the record. On cross-examination by plaintiffs' counsel, for instance, Dr. Enesi testified that he had never been to the Star-Kist fish cleaning facilities or to Alofagia's home and therefore could personally reach no conclusion about whether she was more likely to have contracted the disease at work than at home. Dr. Enesi also testified on cross-examination that it is possible for a person with a strong immune system to have bacteria in his body for several months without contracting meningitis. The Commission's conclusion that the disease was work related is not, of course, invalidated by the presence in the record of evidence that would have supported the opposite conclusion. The question before the Court is not whether the Commission's conclusion was required by the evidence, or even whether it was supported by the preponderance of the evidence, but whether it was supported by substantial evidence.

Workmen's Comp. Comm’n; Star-Kist Samoa, Inc. v.


STAR-KIST SAMOA, Inc., and TRAVELERS
INSURANCE Co., Plaintiffs

v.

WORKMEN'S COMPENSATION COMMISSION, Defendant

MANUIA PEI, Real Party in Interest

High Court of American Samoa
Trial Division

CA No. 111-87

May 20, 1988

__________

Consequences of attorney's failure to comply with court rules should fall whenever possible on attorney rather than on client.

Motion to dismiss for failure to timely file pre- trial brief would be denied, but moving party could recover attorney fees and expenses occasioned by the delay and related proceedings from attorney who failed to file brief.

Before REES, Chief Justice.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendant, Caroline B. Crenna, Assistant Attorney General
For Real Party in Interest, Charles Ala'ilima [7ASR2d138]

On Motion to Dismiss:

This motion was based on failure of counsel for plaintiffs to file a brief by the deadline which had previously been set by the Court. At the hearing on the motion, held on April 11, counsel for plaintiffs expressed his uncertainty about whether he had actually missed the deadline. The motion was taken under advisement.

The Court has ascertained from the transcript of the earlier hearing, held on February 25, that counsel for plaintiffs was ordered to file his brief by March 10. The brief was instead filed on March 14. Nor was this the first deadline missed by counsel for plaintiffs in this case: the record reflects that counsel for plaintiffs filed on January 28 a motion to extend a deadline that had expired on January 15. The Court granted that motion with the observation that the consequences of attorneys' failure to comply with Court rules should fall whenever possible on the attorneys themselves rather than on their clients. For the same reason, the present motion to dismiss is denied. We will, however, award the defendants and the real party in interest any attorneys' fees and other expenses occasioned by the various delays and the pleadings and hearings related to them, such fees and expenses to be proved by affidavit.

At the April 11 hearing the Court also undertook to determine whether the parent/child relationship between the decedent and the real party in interest was legally terminated during the decedent's lifetime. We have ascertained that it was not. The petition for termination of parental rights in Juvenile case No. 47-85 was not filed until April 25, 1985, and concerned only the parental rights of the child's surviving father.

The case appears ripe for decision on the merits. Unless by May 27 any party has requested oral argument or filed another pleading requiring a further hearing, the Court will proceed to determine the case on its merits.

It is so ordered.

**********

In re a Minor Child (JR No. 71-87),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JR No.71-87

May 11, 1988

__________

To be genuinely calculated to give notice, service by publication on a person believed to reside in Western Samoa should ordinarily be in a Western Samoa newspaper in the Samoan language, and notice in Samoan should also be mailed to the party at his last known address. A.S.C.A. § 43.0502.

Parental rights should not be terminated without the testimony of each natural parent unless it is genuinely impossible to obtain such testimony or there is clear and convincing evidence that the parents genuinely understand and consent to the termination.

Before REES, Chief Justice.

Counsel: For Petitioners, Isalei Iuli

On Request for "Notice of Publication":

This petition for termination of parental rights states that the child was left with the petitioners shortly after birth by the natural mother. It appears from the Child Protective Services report that the natural mother is a Western Samoan who was living temporarily in American Samoa with a sister of one of the petitioners. The natural father is unknown to the Court and apparently also to the petitioners.

Petitioners have mailed a notice of the pendency of these proceedings to the natural mother at an address in Western Samoa. The address consists, as most such addresses do, simply of the name of a village. The notice is in the English language. No response has been received. [7ASR2d126]Petitioners now request an order for service by publication on the natural mother and an unnamed natural father.

The requested order will issue. In order to be genuinely calculated to reach the petitioner the publication should be in an Apia newspaper and in the Samoan language, and a notice in the Samoan language should be mailed to the mother in her village in Western Samoa. See Memorandum of the Justices, 3 A.S.R.2d 33 (1986). In this case, however, petitioners might wish to consider making every effort to contact the natural mother in Western Samoa in order to serve her personally with notice of these proceedings, to make sure she understands what they are about, to solicit her testimony as a witness at the hearing on the petition, and to attempt to ascertain the identity of the natural father. This alternative to service by publication would not only minimize the risk of embarrassment to the natural mother, it would also maximize the chances that the petition for termination of parental rights will eventually be granted.

Except in extraordinary cases the natural parents are essential witnesses at the hearing on the merits of a petition for the termination of parental rights. The Court is extremely reluctant to terminate parental rights without some evidence that the natural parents fully understand what is involved in a legal termination and have voluntarily consented to it. Moreover, in cases involving a request for termination of the rights of an unnamed natural father the Court generally seeks to question the natural mother about his identity and whereabouts. Only in cases where it is genuinely impossible to secure the testimony of one or both natural parents, or where there is some other clear and convincing evidence that the parents genuinely understand and genuinely consent to the termination, should parental rights be terminated without such testimony. In this case the Court does not even have a Child Protective Services report on either natural parent.

Locating natural parents in Western Samoa and bringing them here for the hearing does, of course, impose a financial burden on the petitioners. The serious and permanent consequences of a termination of parental rights makes such a burden, in most cases, an unfortunate necessity. [7ASR2d127]

The request for an order permitting service by publication is granted. In case the petitioners prefer to serve notice of these proceedings on one or both respondents personally in Western Samoa, such extraterritorial service is also hereby approved.

**********

In re a Minor Child (JR No. 76-87),


In re a MINOR CHILD

High Court of American Samoa
Trial Division

JR No.76-87

April 20, 1988

__________

Since termination or relinquishment of parental rights also divests natural parents of legal obligations to the child, court should take account of the ages of natural parents and of proposed adoptive parents as a factor in determining who will be better able to care and provide for the child during the remaining period of minority. A.S.C.A. § 43.0403.

Petition for termination or relinquishment of parental rights should not be granted where no benefit to child would result.

Child would not benefit from relinquishment order where (1) proposed adoptive parent was 79, natural parents were 39 and 49, and child was 10; (2) natural parents were employed and had a family home; and (3) proposed adoptive parent received a total income of $275 per month and relied on support from other family members to maintain household.

Before KRUSE, Associate Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Petitioner, Togiola T.A. Tulafono

The facts herein are: grandmother, a widow, is 79 years of age and seeks ultimately the adoption of her 10 year old granddaughter. To this end, the natural parents have brought these proceedings to relinquish their parental rights to the minor.

The minor's natural circumstances are that she is one of four children. Her parents are 49 and 39 years of age respectively. Both are gainfully employed, and they have secured a family home.[12ASR2d116]

The child is said however to have spent most of her life under the care of grandmother who lives next door to the child's family home. Grandmother's household also includes another married daughter, her husband and other grandchildren. We note from the reports of the Child Protection Services Agency that grandmother has had charge of many of her grandchildren, although she has only considered the adoption of the minor before the Court. The reports further reveal that by way of income, grandmother receives a monthly social security check of $175 and an allotment of $100 per month from one of her sons who is serving with the Armed Forces. Notwithstanding, it is also the conclusion of the Child Protection Services Agency, that the realities of grandmother's household are that the daughter and son-in-law are in fact the breadwinners.

We have no doubts on the evidence that grandmother has exhibited the qualities of being a fit, loving and caring parent, but we are equally without doubt that she is not any more fit and suitable than the natural parents. Additionally, given the fact that a relinquishment order would have the final effect of divesting the natural parents of any further obligations towards the child ---A.S.C.A. § 45.0403(d) ---the respective ages of the grandmother and the natural parents bear significantly when weighed against the child's remaining and expected years of dependency. In these circumstances the child would obviously be better off with her status quo remaining. There is nothing on the evidence to suggest any specific advantage to the child necessitating a relinquishment order. The relationship existing between the grandmother and grandchild may nonetheless continue.

We accordingly deny the petition as being contrary to the child's best interests and welfare.

**********

In re a Minor Child (Juv. No. 64-87),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 64-87

January 28, 1988

__________

Requirements of statute providing for notice by publication to defendant in legal proceeding must be complied with before action against defendant can proceed to trial. A.S.C.A. § 43.0502.

Counsel who despite court's notices repeatedly submitted proposed orders and notices that did not comply with requirements of notice by publication statute would be ordered to pay cost of court time consumed in connection with the improper notice, and to refrain from billing his client for time and costs of effecting improper notice.

Before REES, Chief Justice.

Counsel: For Petitioners, Togiola T.A. Tulafono

On Motion to Set Trial Date:

On September 9, 1987, counsel in this case requested an order for notice by publication to the natural father of this child, who could not be [7ASR2d25] found within the territory. The last sentence of the proposed order was, "Such publication shall be made once."

The Court crossed out this last sentence and wrote, "(Change your form.)" This was a reference to the fact that counsel had been notified on several prior occasions that notice by publication must conform to the statute governing such notice, A.S.C.A. § 43.0502. That statute provides in pertinent part that publication shall be "once each month for 2 consecutive months."

Although there was a time when the requirements of the notice by publication statute were not strictly enforced, they have been so enforced at least since May 1, 1986. On July 8, 1986, the Chief Justice and the then-Associate Justice caused a memorandum to be distributed to all the attorneys in the Territory calling attention to the statutory requirement and explaining that it would be enforced. Memorandum of the Justices, 3 A.S.R.2d 33 (1986). On October 16, 1986, present counsel submitted a proposed order in another case specifying that publication "shall be made once." The Court crossed out "once," substituted the words "in accordance with A.S.C. sec. 43.0502," and attached a copy of the July 8 judicial memorandum. In subsequent cases, however, present counsel persisted in submitting proposed orders or notices that did not comply with the statute, requiring the Court to make additions and deletions and to remind counsel of the statute and the memorandum. The order in this case to "change your form" was made in the hope of bringing this practice to an end.

Remarkably, however, counsel's motion for a trial date in this case is accompanied by an affidavit from a newspaper editor (apparently prepared on counsel's office typewriter) attesting that "[s]uch publication was made once."

The Court does not believe that counsel is deliberately submitting orders he knows the Court will not sign. Nor does it seem likely that counsel is submitting orders that do not comply with the statute, the judicial memorandum, or our various prior notices to him in the hope that we will stop noticing and start signing such orders. Rather, it appears that counsel is signing documents prepared by his secretaries from outdated [7ASR2d26] forms and then submitting them to the Court without reading them carefully. This is a disservice to the clients whose case is needlessly complicated and delayed, to the Court, and in the long run to the attorney himself.

This case cannot be set for a hearing until notice by publication is effected in accordance with the statute. Counsel is ordered not to bill his clients for time spent effecting the earlier improper notice or for any of the costs of such notice. Counsel is further ordered to pay $100 to the Clerk of Court for the approximate cost of court time consumed in connection with this attempt to get his attention. This sum is not, of course, to be billed to the client.

It is so ordered.

**********

Auelua; In re Estate of


In re Guardianship of TAUESE AUELUA

In re Guardianship of FO'I AGASIVA
and OPAALO AGASIVA

DEVELOPMENT BANK OF AMERICAN SAMOA,
Guardian of the Estates, Petitioner

High Court of American Samoa
Trial Division

PR No. 14-65
PR No. 10-80

March 4, 1988

__________

Guardian of the estate of an incompetent person could not discharge its obligation to account for funds belonging to the estate merely by informing the Court that all the money was gone, even though the guardian was an institution whose management had changed hands since the establishment of the guardianship.

Before REES, Chief Justice.

Counsel: For Petitioner, Steven H. Watson

On Request to Approve Annual Accountings:

The High Court recently conducted a review of its guardianship files. The primary purpose of this exercise was to identify guardianships that should be terminated because the circumstances giving rise to them (in most cases the need to administer property belonging to a minor) had ended. The review also called to the Court's attention a number of cases in which the guardian had failed to make required reports to the Court. In these cases the Court ordered that such reports be made within thirty days.

These two cases concern adults who were adjudged incompetent to manage their property and for whom the Development Bank of American Samoa was therefore appointed guardian. In PR No. 14-65 a [7ASR2d71] guardian was first appointed in 1965 and regular annual reports were made through 1982. In January of 1983 the Court approved the expenditure of about half the money in the fund ($5101.60) for the improvement of a house in which the ward was living, on condition that written receipts for all expenditures be submitted to the Court. No such receipts were ever submitted and no annual report was filed for 1983 or any subsequent year. In PR No. 10-80 a guardian was appointed in 1980 and an annual report was filed for that year but for no subsequent year.

In response to the Court's order for status reports on these two cases the Development Bank has submitted "annual accountings " indicating that all the money in each account was expended in the first year for which an annual report is overdue. No information is supplied about how the money was spent, to whom it was disbursed, or why it was disbursed without court approval. (The advance approval of the Court had been sought for all previous disbursements in each of these cases, and in No. 14-65 there was an explicit order to the effect that written receipts must be supplied to the Court.) We do not even know, and possibly the guardian does not know, whether the wards are dead or alive.

A fiduciary cannot discharge his accounting and reporting obligations merely by informing the Court that all the money is gone. The Court understands that the management of the Development Bank has changed hands several times since the early 1980s and that present management is not personally responsible for any breaches in fiduciary obligations that may have occurred during that time. Before the Court can decide what to do about these matters, however, it is necessary to get a clearer picture of what happened. This can probably be obtained from copies of the Bank's records concerning the expenditures in question, supplemented if necessary by sworn statements from the present and former Bank officials and employees who handled the transactions and from the wards or their relatives. If the Bank prefers to proceed by means of hearings in open court, the Court's resources (including the subpoena power) are of course available. The Bank should file revised reports or schedule hearings in these cases by Apri14. [7ASR2d72]

It is so ordered.

**********

American Samoa Gov’t v. Godinet,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

IGNATIUS GODINET, Jr., Defendant

ALEX GODINET and FRANK GODINET,
Respondents to Order to Show Cause

High Court of American Samoa
Trial Division

CR No. 62-87

May 2, 1988

__________

Criminal trial is not a private matter between victim and defendant or his family, and anyone who enters an agreement with the purpose of rendering court unable to proceed by making evidence unavailable may be held in contempt of court.

Courts have inherent power to ensure the integrity of court functions by punishing contempt of court, even in the absence of statutory contempt power.

Criminal contempt statute authorizing the executive to prosecute certain conduct as criminal contempt of court does not limit court's power to act on its own under general contempt statute. A.S.C.A. §§ 3.0203, 46.4617.

General contempt statute may give rise to criminal liability despite existence of separate statute making certain acts criminal offenses. A.S.C.A. §§ 3.0203, 46.4617. [7ASR2d128] Contempt statute giving court power. to punish resistance or disobedience to court's process should be construed to refer to resistance or obstruction of the process by which the court conducts its business, not just disobedience to subpoena or other paper requiring attendance in court. A.S.C.A. § 3.0203.

Agreement between prospective witness in criminal proceeding and members of the defendant's family that defendant would leave the territory and victim would refuse to testify constituted resistance to process of court within meaning of contempt statute, even if "process" is construed narrowly to refer to a subpoena and even though the agreement was made prior to the issuance of a subpoena to the witness. since the agreement could not reasonably be construed to mean that the witness would refuse to testify only if she received no subpoena. A.S.C.A. § 3.0203.

Agreement between p1'ospective witness and members of criminal defendant's family that defendant would leave the territory and witness would refuse to testify, made after court's order that defendant stand trial and with the purpose of preventing the trial, constituted resistance to the court's mandate within the meaning of contempt statute. A.S.C.A. § 3.0203.

Before REES, Chief Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, James Doherty, Assistant Attorney General
For Defendant Ignatius Godinet, Aitofele Sunia
For Respondents on Order to Show Cause, Togiola T.A. Tulafono

On Motion for Reconsideration or New Trial:

On November 28, 1987, a fifteen-year-old girl went to the police station and gave a lengthy statement detailing the circumstances of her alleged rape the previous night by Ignatius Godinet, Jr. Godinet was arrested and became the subject of a criminal prosecution. On the partial basis of the girl's testimony at the preliminary examination before the District Court, Godinet was [7ASR2d129] bound over to the High Court on charges of rape, sodomy, and sexual assault. The Chief Justice of the High Court ordered that trial be set for January 19, 1988. The girl was to be the principal witness for the prosecution. Another alleged eyewitness, a fifteen-year-old boy whose prior statement and preliminary examination testimony had substantially corroborated the girl's charges, left the Territory shortly thereafter for an undisclosed destination.

Four days before the date scheduled for trial, the complaining witness met with the prosecuting attorney and presented to him a handwritten and signed note given to her the night before by three relatives of the defendant. In the note those relatives promised to ensure that Ignatius Godinet would leave the territory and would never bother the girl again. It was clear that this assurance was given in exchange for the girl's refusal to testify; the note purported to grant or reserve to her "the right to reopen this case" should the defendant return to the Territory.

No subpoena had yet been issued to the complaining witness. This failure, however, was apparently due only to the fact that no one had believed it necessary. The girl had approached the police on her own. She had fully cooperated with the Attorney General's office in its preparation of the case. She had testified at the preliminary examination. When she informed the government of the agreement she had reached with the defendant's relatives, the government immediately sought to compel her appearance by issuing a subpoena. The girl did, however, fulfil her side of the bargain by disappearing, and the case against Ignatius Godinet was subsequently dismissed.

On January 26, 1988, the relatives who had signed the agreement appeared before this Court to show cause why they should not be held in contempt of court. Their principal defense was that the agreement had originally been the girl's idea rather than their own. Two of the relatives, Alex and Frank Godinet, were nevertheless held to be in contempt. The Court explained that a criminal trial is not simply a private matter between the alleged victim and the defendant or his family, and that anyone who enters into an agreement whose purpose is to deprive the Court of its ability to proceed. by making evidence unavailable thereby [7ASR2d130] places himself in contempt of Court regardless of whether the agreement was originally his own idea or someone else's. The Court further noted that the alleged ringleader in the incident was a fifteen-year-old girl and that Alex and Frank Godinet are adults who should have resisted any suggestion by her to enter into an illegal agreement. The Court did, however, accept their testimony about the circumstances of the agreement as tending to mitigate the offense and therefore suspended the six-month sentence.

Counsel for Alex and Frank Godinet now moves for a reconsideration of the holding that they were in contempt, or in the alternative for a new trial.

Counsel's arguments can be distilled to two. First, counsel urges that the territorial statute purporting to give the Court power to punish contempt, A.S.C.A. § 3.0302(3), does not in fact confer authority to punish any particular kind of conduct. Rather, in order to be punishable as contempt an action must be prohibited by the separate contempt statute in the criminal code, A.S.C.A. § 46.4617. Second, since the witness had not been served a subpoena at the time of the agreement that she would not testify, there was no "process" of the Court for the agreement to have impeded.

The first argument is founded on a misunderstanding of the nature of the Court's power to punish contempt. Courts necessarily possess the inherent ability to take steps to ensure the integrity of the process by which they decide the cases before them.

[T]he right of courts to conduct their business in an untrammeled
way lies at the foundation of our system of government and courts
necessarily must possess the means of punishing for contempt when
conduct tends directly to prevent the discharge of their functions.

Wood v. Georgia, 370 U.S. 375, 383 (1962). In other words, the High Court could hold someone in contempt even if there were no statutes at all. It happens that the Fono has affirmed this power by enacting A.S.C.A. § 3.0203. It has also enacted a separate statute, A.S.C.A. § 46.4617, which makes certain contumacious acts punishable by ordinary [7ASR2d131] criminal prosecution. The criminal statute, which vests discretionary power in the executive to prosecute certain kinds of conduct, in no way diminishes the Court's power to act on its own initiative under the former statute. Cf. Steinert v. United States District Court for the District of Nevada, 543 F.2d 69, 70 (9th Cir. 1976) (18 U.S.C. § 401, a federal statute similar to A.S.C.A. § 3.0203, may give rise to criminal liability despite the existence of a separate statute making certain contumacious acts criminal offenses). Here lies the answer to the argument that A.S.C.A. § 3.0203 is "not capable of violation."

The defendants next argue that, since no subpoena had yet been served on the witness, their efforts to ensure her absence could not have been contumacious of the Court's authority. This argument assumes not only that the term "process" as it appears in A.S.C.A. §§ 3.0203 and 46.4617 must mean an affirmative and explicit command from the Court, but also that it is only possible to "resist" process that has already been formally issued.

The first of these two propositions ---that "resistance to process" should be narrowly construed to mean only the encouragement of disobedience to a subpoena rather than comprehending any deliberate obstruction of the process by which the Court conducts its business ---has support in at least one judicial opinion from another jurisdiction. See Sellers v. State, 90 So. 716 (Miss. 1922). We are inclined, however, to disagree with the holding in Sellers for the reasons stated in the vigorous dissent to that opinion and in the cases and other authorities cited therein. The phrase in our contempt statute on which defendants in this contempt proceeding rely, defining contempt to include in pertinent part "disobedience or resistance to [the Court's] lawful writ, process, order, rule, decree, or command," (1) seems to have been designed to restate [7ASR2d132] and incorporate the common law definition of contempt, under which efforts to secure the absence of a witness were contumacious regardless of whether the witness had been served with a subpoena. See Sellers, supra, at 717-22 (Ethridge, J., dissenting), and authorities cited therein.

Ultimately, however, we need not decide whether "process" means the judicial process itself or only a subpoena or other paper emanating from that process. For in this case a subpoena actually did issue, albeit a few days after the agreement between the defendants and the witness. The question before us, as formulated by the defendants themselves, is whether the agreement constituted "resistance to" that subpoena. This is a question of contractual interpretation. Surely a contract that explicitly required the girl to disobey any subpoena that might thereafter be issued would be a [7ASR2d133] form of "resistance to" such a subpoena, notwithstanding the chronological order of the two documents. Montomerv v. Palmer, 59 N.W. 148 (Mich. 1894) (convincing witness to avoid service of a subpoena held to be contumacious under statute defining contempt in pertinent part as "unlawful interference with the process" of the court). The question in this case, therefore, is whether the parties to the agreement intended the girl to absent herself only in the event she received no subpoena. Such a construction would seem absurd. It is certainlyat odds with the construction the girl herself put on the agreement: almost immediately after being served with the subpoena she dropped out of sight and subsequently wrote a letter to Ignatius Godinet's lawyer, stating, "I only intend to honor my word and keep at peace wj.th a family." It defies logic to suggest that the defendants have not resisted the process of the Court merely because they got to the witness before the subpoena did.

In any case, even if we found that the defendants in contempt resisted no "process," they certainly resisted an "order" of the Court and therefore committed contempt within the definition of A.S.C.A. §§ 3.0203. (See also A.S.C.A. § 46.4617(3) (emphasis added): contempt includes "intentional disobedience or resistance to the process, injunction, or other mandate of a court.") On December 9, 1987, well before the date of the agreement between the Godinets and the prospective witness, the Court ordered that Ignatius Godinet be tried on January 19, 1988 for two counts of forcible rape, one count of forcible sodomy, and one count of sexual abuse in the first degree. The whole purpose of the agreement into which the Godinets subsequently entered, as evidenced by its language and by the testimony of the defendants themselves at the contempt hearing, was to prevent that trial from taking place. This was "resistance to" the Court's lawful order.

Notwithstanding our disagreement with the defendants' proposed definition of contempt, we will grant their motion for a new trial. The earlier proceeding was necessarily held on short notice; defendants and their counsel, possibly because of inadequate time for preparation, seem not to have appreciated the legal standards that were to be applied and may therefore not have offered all the evidence they might otherwise have [7ASR2d134] wished to offer. The judgment and the suspended sentences will therefore be vacated and a rehearing of the order to show cause will be set for June 15, 1988.

It is so ordered.

**********

1. The quoted language is from A.S.C.A. § 3.0203(3). The statute on which defendants in contempt contend this proceeding should be based, A.S.C.A. § 46.4617(3), forbids "intentional disobedience or resistance to the process, injunction, or other mandate of a court." For the purposes of determining whether defendants in contempt engaged in "resistance to process," the two statutes would appear to be identical. Defendants contend, however, that "process" in § 46.4617 refers back to a preceding section having to do with the obstruction of process servers, which defines "process" as "any writ, summons, subpoena, warrant other than an arrest warrant, or other process or order of a court." A.S.C.A. § 46.4616. We disagree with this contention. A statute making it illegal to obstruct process servers necessarily contemplates "process" only in the sense of papers issued by a court. For the reasons discussed in the text of this opinion, "the process....of a court" within the meaning of a contempt statute would seem to have a far broader meaning. As discussed in the text, however, it is not necessary for us to resolve this question, since defendants committed contempt even within the narrow construction they urge us to adopt.

American Samoa Gov’t; Tauasosi v.


PIO TAUASOSI, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 19-86

January 5, 1988

__________

Statute providing that assault in the first degree is committed when a person "attempts to kill or cause serious physical injury to another person" requires proof of specific intent. A.S.C.A. § 46.3520(a)(2).

Where a statute requires that a person act intentionally, knowingly, or purposefully, or "attempt" to commit a crime, proof of specific intent is required. A.S.C.A. §§ 46.3503 (a)(1), 46.3503 (a)(2), 46.3520 (a)(1), 46.3520 (a)(2).

No proof of specific intent is required by statute providing that a person commits a crime if "under circumstances manifesting extreme indifference to the value of human life he recklessly engages in conduct which creates a grave risk of death." A.S.C.A. §§ 46.3503 (a)(3), 46.3520 (a)(3).

A crime that requires proof of specific intent is not a lesser included offense of a crime that does not require proof of specific intent and must be separately charged. [7ASR2d6]

Before KRUSE, Associate Justice, KING*, Acting Associate Justice, O'SCANNLAIN**, Acting Associate Justice, and AFUOLA, Associate Judge.

Counsel: For Appellant, Aumoeualogo Soli, Public Defender
For Appellee, Tauivi Tuinei, Assistant Attorney General

PER CURIAM:

At about 11:00 in the dark of the night on April 12, 1986, at Amaluia, American Samoa, Pio Tauasosi, in the course of a series of events including rock throwing, house burning, and beer drinking, and for reasons best known to himself, fired a shotgun in the general direction of moving human figures nearby. Thereafter, Taesale Nelson was found dead with shotgun pellets in his left side, skull, and heart; Tuifanua Taetuna was found to have sustained gunshot injuries to his legs; and Ropati Hicks was found to have received three shotgun pellets in his stomach area and one shotgun pellet in an arm.

On April 28, 1986, an information was filed in the Trial Division of this Court charging Pio Tauasosi in three counts with (count I) murder in the second degree for the death of Taesale Nelson, (count II) assault in the second degree for the injuries to Tuifanua Taetuna, and (count III) assault in the second degree for the injury to Ropati Hicks.

Pio Tauasosi was tried on this information on July 25, 1986, and found not guilty as charged on each count. However, the trial court found him guilty of an assault in the first degree as a lesser included offense under count I in that "the [7ASR2d7] Defendant did attempt to kill or cause serious physical injury" to someone. Judgment and sentence of 10 years imprisonment were entered on September 2, 1986.

In an opinion filed on October 20, 1986, denying a motion in arrest of judgment, Chief Justice Rees for himself and Judge Fruean wrote in part:

At the conclusion of the evidence, both judges were strongly
of the opinion that the shot fired by the defendant was the same
one that killed Sale Nelson and injured the two other boys.
We did not, however, believe that the evidence established
this beyond a reasonable doubt. [There was a suggestion that
someone else had fired another shotgun, although there was
no physical evidence of such an event.] We were therefore
bound to acquit the defendant of murder.
The Court did find, however, that the defendant fired at
someone... Noting the well-established presumption that one
who fires a gun at someone intends to kill him, the Court
therefore found defendant guilty of assault in the first degree...
Since the evidence did not establish beyond a reasonable
doubt that the defendant had intended to shoot more than one
person or that he actually did shoot more than one person, he
was acquitted of the two second-degree assault counts.

The motion in arrest of judgment and this appeal argue that assault in the first degree is not a lesser included offense of count I of the information as charged, and that defendant was therefore convicted of an offense of which he had no notice.

Murder in the second degree is defined by A.S.C.A. § 46.3503 as follows:

(a) A person commits the crime of murder in the 2nd degree if:

(1) he intentionally causes the death of another person;
(2) knowing that his conduct will cause death or serious
physical [7ASR2d8] injury, he causes person; or
(3) under circumstances manifesting extreme indifference
to human life, he recklessly engages in conduct which
creates a grave risk of death and thereby causes the death
of another person.
(b) Murder in the 2nd degree is a class A felony.

Assault in the first degree is defined by A.S.C.A. § 46.3520 as follows:

(a) A person commits the assault in the 1st degree if:
(1) he purposely or knowingly causes serious physical injury
to another person; or
(2) he attempts to kill or cause serious physical injury person
to another person; or
(3) under circumstances manifesting extreme indifference
to the value of human life he recklessly engages in conduct
which creates a grave risk of death to another person and
thereby causes serious physical injury to another person.
(b) Assault in the 1st degree is a class B felony unless committed
by means of a deadly weapon or dangerous instrument, then
it is a class A felony.

Assault in the second degree is defined by A.S.C.A. § 46.3521 as follows:

(a) A person commits the assault in the 2nd degree if:
(1) he knowingly causes or attempts to cause physical injury
to another person by means of a deadly weapon or
dangerous instrument;
(2) he recklessly causes serious physical injury to another
person; or
(3) he attempts to kill or to cause serious physical injury
under circumstances that would constitute [7ASR2d9]
assault in the 1st degree under 46.3520, but:
(A) acts under the influence of extreme emotional disturbance
for which there is a reasonable explanation or excuse;
the reasonableness of the explanation or excuse is
determined from the viewpoint of an ordinary person in
the actor's situation under the circumstances as the actor
believes them to be; or
(B) at the time of the act, he believes the circumstances to
be that, if they existed, would justify killing or inflicting
serious physical injury under the provisions of 46.3301
et seq. , but his belief is unreasonable.
(b) The defendant has the burden of injecting the issues of
extreme emotional disturbance under subparagraph
(a)(3)(A) or belief in circumstances amounting to
justification under subparagraph (a) (3) (B) .
(c) Assault in the 2nd degree is a class D felony.

The information under which Pio Tauasosi was tried reads as follows:

COUNT[I]: the above named defendant is charged with the
crime of Murder in the Second Degree in that on or about
April 12, 1986, at or around 11:00 p.m. , at or near Amaluia,
American Samoa, he recklessly engaged in conduct which
create a grave risk of death and thereby causes the death of
another person, to wit: defendant fired a shotgun toward
certain people at night causing the death of Taesale Nelson
in violation of A.S.C.A. 46.3503; Murder in the Second
Degree; A Class A felony; Maximum penalty--Life
Imprisonment.

COUNT [II]: [T]hat above named defendant is also charged
with crime of Assault in the Second Degree that on or about
April 12, 1986, at or around 11:00 p.m. , at or near Amaluia,
American Samoa, he causes or attempt to cause physical injury
to another person by means of a deadly weapon or dangerous
instrument, to [7ASR2d10] wit: defendant fired his shotgun.
toward certain people causing physical injury to Tuifanua
Tuifanua in violation of A.S.C.A. Section 46.3521, Assault
in the Second Degree; A Class D felony; Maximum penalty-
5 years imprisonment.

COUNT [III]: [Same as COUNT II, except for naming Ropati
Hicks in place of Tuifanua Tuifanua].

Count I of the information references the entirety of A.S.C.A. 46.3503. However, it clearly tracks the language of A.S.C.A. 46.3503(a)(3). Counts II and III of the information reference the entirety of A.S.C.A. 46.3521. However, they clearly track the language of A.S,C.A. 46.3521 (a)(l). All counts leave out significant statutory language. Count I does not allege that the defendant acted "under circumstances manifesting extreme indifference to human life." Counts II and III do not allege that the defendant acted " knowingly."

By inadvertence, the judgment and sentence actually signed and filed on October 20, 1986, referenced A.S.C.A. 46.3520(a)(3). In his oral statement at the time of announcing his verdict, the trial judge was clearly basing the verdict of guilty of a lesser included offense under count I on A.S.C.A. 46.3520(a)(2). Defendant's counsel moved to have the judgment corrected, and the government concedes that this motion was granted, although a written motion to this effect was not filed until July 1, 1987, and no written order granting the motion appears in the record on appeal.

Thus, the principal issue presented to this court is whether an attempt to kill or to cause serious physical injury to another person, as defined by A.S.C.A. 46.3520(a)(2), is a lesser included offense under the charge contained in count I of the information.

Appellant argues that count I by its precise language charges only reckless conduct as prohibited by A.S.C.A. 46.3503(a)(3), whereas assault in the first degree as prohibited by A.S.C.A. 46.3520(a)(2) requires proof of specific intent. [7ASR2d11]

We agree with Appellant. The situation is similar to that which was presented to the Supreme Court of Maine in State v. Colson, 405 A.2d 717 (Me. 1979). There an indictment was brought charging that the defendant "did by force and against her will compel [a female] to engage in sexual intercourse, [the female] not being his spouse." The indictment tracked the language of subsection (1)B(1) of the rape statute. Id. The indictment did not include the language of subsection (1)B(2) which defines another form of compulsion, that is, a "threat that death, severe bodily injury, or kidnapping will be imminently inflicted on the person or any other person." The trial judge found that the defendant compelled the female to submit not by physical force but by implied threats of lesser magnitude than "death, serious bodily injury, or kidnapping," but that this was sufficient proof of the crime of rape. Id. The appellate court held that the specific grounds charged not having been proved, and the alternative grounds found not having been charged, the conviction could not stand. Id. at 721.

Here the statutes make a distinction among three definitions of murder in the second degree. The first two require proof of specific intent. The third requires proof only of reckless conduct. The statutes also make a distinction among three definitions of assault in the first degree. The first two require proof of specific intent. The third requires proof only of reckless conduct.

Pio Tauasosi was charged in count I with murder in the second degree committed as a result of reckless conduct as defined by A.S.C.A. 46.3503(a)(3). No specific intent was required to be proven under this charge. Assault in the first degree as defined in A.S.C.A. 46.3520(a)(2) requires proof of specific intent. Therefore, it cannot be a lesser included offense under A.S.C.A. 46.3503(a)(3).

The judgment of the Trial Division adjudging Pio Tauasosi guilty of assault in the first degree as defined by A.S.C.A. 46.3520(a)(2) is, therefore, REVERSED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Judicial Memorandum No. 1-88;


JUDICIAL MEMORANDUM No. 1-88

High Court of American Samoa

June 14, 1988

__________

Funds held in trust for minors and other incompetents may be deposited in court's registry, where they will be placed in interest-bearing accounts, no trusteeship fees will be charged, and disbursements will be subject to court approval.

Legal guardians are not responsible for funds deposited with court's registry and need not make periodic reports concerning such funds.

Funds held in trust may be held in interest-bearing accounts outside the registry of the court, but court may require periodic reports, bonding of guardian or trustee, and/or the continued involvement of an attorney in order to protect the interests of the beneficiary.

REES, Chief Justice, and KRUSE, Associate Justice:

As many of you already know, we badly need a new way to deal with guardianships of the estates of minors and other legally incompetent persons.

The Development Bank, which formerly served as guardian of the estates of nearly all such persons in the Territory, does not wish to take on any new guardianships.

The only alternative currently in use, in which a parent or other guardian is ordered to hold funds in a trust account from which withdrawals may be made only with permission of the Court and to make periodic reports to the Court, has proven to be a disaster. A recent review of thirty or forty cases in which such orders had been made turned up almost no cases in which the guardians had fully complied with the Court's order. More often the guardian had spent the money within a few months (sometimes within a few days) of receiving it, usually on things the guardian believed would benefit the child by benefitting the whole family. [7ASR2d145]

Several attorneys of record in such cases have expressed surprise and dismay at the possibility that they might be held responsible for knowing whether their clients have complied with the Court's orders, or even for knowing how to contact their clients when compliance has not occurred. Regardless of where the responsibility currently resides, it seems obvious that this is an unrewarding activity for attorneys and in the vast majority of cases can be done without an attorney.

We propose, without much enthusiasm but because extensive discussion among the Justices and several attorneys has yielded no better idea, that funds received by minors and other incompetent persons in the future be deposited directly into the registry of the Court. Such funds would be handled according to the following procedures:

1) The Clerk would put all such funds into an interest-bearing account or accounts, and would credit such interest to the account of the beneficiary.

2) No trusteeship fees would be charged; the administrative work would be absorbed into the general budget of the Court.

3) Disbursements would be requested of the Clerk, either in writing or by means of a personal visit from the guardian of record during business hours, and approved or disapproved by one of the Justices.

4) The parent or other petitioner would remain the legal guardian of record, but would be absolved of responsibility for any funds deposited with the Court. The legal guardian would not be required to make periodic reports concerning funds deposited with the Court, but would receive a copy of an annual report prepared by the Clerk and approved by a Justice.

5) Except in extraordinary cases requiring the continued services of an attorney, the Court would freely grant motions by attorneys to withdraw as counsel of record in guardianship cases.

6) These procedures are suggested to attorneys only as an option that should in most cases make life simpler for guardians, beneficiaries, [7ASR2d146] attorneys, and .judges. Any party remains free in any case to petition for a guardianship in which funds are kept elsewhere than in the registry of the Court. In light of past experience with private guardianships, however, the Court may require bonding and/or the continued involvement of the attorney to ensure compliance with its orders.

7) These suggested procedures obviously do not affect private guardianships that already exist. Insofar, however, as private guardians and their attorneys desire to convert to such an arrangement in order to absolve themselves of continuing responsibility for reporting and compliance, motions for the deposit of current guardianship funds into the registry of the Court will be freely granted.

We would appreciate your comments and suggestions on this and related matters.

**********

Fuimaono; In re Estate of


In re Estate of GALU VALA FUlMAONO

YVONNE FUIMAONO, Petitioner

High Court of American Samoa
Trial Division

PR No.24-88

June 9, 1988

__________

Territorial statute providing for transfer of small estates to persons entitled thereto without letters [7ASR2d143] of administration was inapplicable to estate with assets in excess of $10,000. A.S.C.A. § 40.0334.

When petitioner had secured the transfer of contents of a safe deposit box belonging to decedent by attesting that the assets in decedent's estate had a total value of less than $10,000, and safe deposit box was subsequently discovered to contain assets whose value was greater than $10,000, the assets could not be distributed or retained by the petitioner without the issuance of letters of administration for decedent's estate. A.S.C.A. § 40.0334.

Before REES, Chief Justice.

Counsel: For Petitioner, Charles Ala'ilima

Petitioner Yvonne Fuimaono, the widow of the deceased, petitioned the Court for transfer of his assets to her in accordance with the provisions of A.S.C.A. § 40.0334. It is an essential prerequisite to the procedure provided in that section that the total assets of the deceased be valued at less than $10,000, and petitioner Fuimaono so attested in her petition.

The inventory of the contents of a safety deposit box held by the deceased clearly reveals that his assets include at least $10,838 in cash. Since our order that the assets of the deceased be transferred to petitioner Fuimaono was based on the erroneous assumption that the assets were less than $10,000, the order is hereby rescinded. The assets belong to the estate of Galu Fuimaono and the law prohibits their disposition except in connection with the lawful administration of the estate. They should be deposited immediately with the Clerk of the Court, where they will be held until the petitioner or someone else can be appointed administrator of the estate.

It is so ordered.

**********

Ferstle v. American Samoa Gov’t,


Argument that license was "revoked" without procedural due process was unfounded where evidence shows license was never granted. Am. Sam. Const. art. I § 2.

Pervasively regulated businesses which have long been subjected to close inspection and supervision, such as barbershops, may in proper circumstances be subjected to warrantless search. Am. Sam. Const. art. I § 5. [7ASR2d27]

Plaintiffs were not denied equal protection when denied license as a hairdresser or cosmetician because they did not meet standard of experience set out by the legislature. U.S. Const. amdt. 14, § 1.

In order to have a cognizable claim for deprivation of procedural due process, one must first possess a "liberty" or "property" interest in the government action complained of. Am. Sam. Const. art. I § 2.

Procedural due process requirements are not fixed, but vary with circumstances and particular demands of the case; however, some sort of notice and hearing is required before an individual is finally deprived of a property interest. Am. Sam. Const. art. I § 2.

Notice and hearing afforded to satisfy procedural due process need not be full judicial hearing. Am. Sam. Const. art. I § 2.

To satisfy requirement of procedural due process, opportunity to be heard must be granted at a meaningful time and in a meaningful manner, but need not always be granted prior to the initial deprivation of property. Am. Sam. Const. art. I § 2.

Ordinarily, due process is satisfied by proceedings less than a full evidentiary hearing prior to adverse administrative action, and the sufficiency of such proceedings is to be determined in light of 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would impose. Am. Sam. Const. art. I § 2.

Procedural due process is satisfied by piecemeal proceedings wherein parties were advised of the required showing, the proofs were considered promptly by the regulating agency, parties were advised of the agency's findings of insufficiency, parties submitted further proofs which agency considered and again advised parties that such proof was insufficient but did not issue a denial [7ASR2d28] and remained open to further submission of proofs Am. Sam. Const. art. I § 2.

Due process requirements of notice and opportunity to be heard are not triggered until adverse administrative action constituting a "final" deprivation of property has taken place. Am. Sam. Const. art. I § 2.

Recurring and intentionally dilatory tactics by agency may constitute "final" action sufficient to trigger due process requirements of notice and hearing. Am. Sam. Const. art. I § 2.

The expected benefit of a license which issues subject to articulated standards of qualification is a property interest giving rise to due process protection, although not to the full range of pre- deprivation procedural protections applicable to entitlements that are less contingent than the expectation of a license. Am. Sam. Const. art. I § 2.

Because in most cases licensing will be a straightforward process, quasi-judicial evidentiary hearing, in all licensing proceedings would needlessly increase government expenditures and such hearings are required only where the proposed action on a license application will be final. Am. Sam. Const. art. I § 2., A.S.C.A. § 31.1508.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, William Reardon
For Defendants, Phyllis Coven and Martin Yerick, Assistant Attorneys General

Plaintiffs, Bobbie Ferstle and Carol Holmes, filed suit for damages against: the American Samoa Government; the Cosmetology Board of American Samoa; the Department of Public Safety; two named members of the Cosmetology Board, Helga Lefiti and Gretchen Makaiwi; and others joined under the fictitious Doe identity. The claims essentially arise consequent to unsuccessful attempts by plaintiffs to persuade the Cosmetology Board to license plaintiff Carol Holmes as a Cosmetician/Hairdresser under the provisions of the Beauty Culture Act, (hereafter the "BCA") A.S.C.A [7ASR2d29] §§ 31.1502 et seq., and plaintiff Bobbie Ferstle as the proprietor of a beauty shop called "Mr. Paul's". In addition, pending resolution of these applications, Ms. Holmes was placed under arrest at Mr. Paul's by an officer of the Department of Public Safety for using a curling iron and thereby, allegedly practicing as a hairdresser in violation of the BCA. The plaintiffs urge that the arrest was unlawful and incited through a conspiratorial design of the defendants.

The complaint generally alleges that as a proximate result of the actions of defendants and each of them, plaintiffs have been specially and generally damaged.

As a result of pre-trial orders entered in this matter, the Cosmetology Board and the Department of Public Safety were stricken as inappropriate party-defendants. Justice Murphy's reasoning appeared to be that both the department and the board were wi thin the rubric, "American Samoa Government." Also as a result of these motions, plaintiffs identified their cause of action as based on the Federal Civil Rights Act, 42 U.S.C. sections 1983 and 1985. For reasons heretofore given, the Court had granted American Samoa Government's motion for summary judgment in that a Civil Rights Act cause of action did not lie against the government as a matter of law.

At the time of trial, the two named members of the Cosmetology Board were the remaining defendants. Plaintiffs had not identified any of the defendants named in the complaint as Does.

FACTS & LEGAL BACKGROUND

One Paul Parks, a former resident of the territory, had owned and operated up until the close of 1985 a beauty salon known as "Mr. Paul's". Employed with the salon as a beautician was plaintiff Carol Holmes. Ms. Holmes had apparently worked for Mr. Paul's under the misapprehension that she was not subject to additional local licensing as she held a Washington State license. She assumed that she was able to do all the things she was permitted to do in Washington. It was her belief that that was how it works with all the states of the Union. [7ASR2d30]

At or around the year's end, the business was made available for sale after Mr. Parks had departed the territory, leaving Ms. Holmes to run and manage the salon. Also around this time frame, Plaintiff Bobbie Ferstle had returned to the territory for a visit and was introduced to the idea of acquiring Mr. Paul's. Ms. Ferstle had then recently qualified as a beautician according to the laws of the State of California. Ms. Ferstle acquired the salon and then sought to obtain a business license.

Business License Act:

A business license is required of any person or entity proposing to engage in business within the territory. See A.S.C.A. §§ 27.0201 et seq. The licensing process is an annual requirement, (1) and as a business license is by terms of the statute, deemed personal, it is not transferable. (2) Accordingly, Ms. Ferstle had to apply for a license to operate Mr. Paul's on her own standing.

In practice, the application for a business license entails a procedure of securing approvals from ,a number of government agencies and commissions appropriate for licensure of the particular business activity proposed. These approvals are signified by the approving agency by signature on the application form provided for routing through the various agencies. After the application form is complete with the relevant approvals, and upon the applicant's payment of a set fee, a business license is issued.

In plaintiff Ferstle's case, the Cosmetology Board was a statutorily appropriate board included in the approval process by reason of the provisions of the BCA.

Beauty Culture Act:

The BCA was first enacted some time in 1973. According to the testimony of defendant Helga Lefiti, a longstanding salon operator in the territory, the enactment came about after a member of the public received severe chemical burns to her [7ASR2d31] face as a result of "beauty" treatment. The Act is regulatory in purpose and classifies the grooming profession as "Hairdressers" and "Cosmeticians" and provides separate definitions of these terms. See A.S.C.A. § 31.1502(d), (e). As initially enacted in 1973, (26 A.S.C. §§ 1100 et. seq. ) the statute provided for implementation by the Governor's Office, but the 1983 amendment to the Act took this implementation function away from the Governor's Office and created an independent licensing authority known as the "American Samoa Board of Cosmetology". See A.S.C.A. § 31.1502.1. This enactment established the board as consisting of 5 members appointed by the Governor for staggered 3 year terms. At least 2 of the membership must be licensed operators (i.e. "hairdresser" or "cosmetician" ) and the board elects a chairman from its members and meets quarterly or more frequently at the call of the chairman. Administrative and staff services for the board are to be provided by the Office of Economic Development, with legal assistance to come from the Office of the Attorney General.

Generally, the board is charged with a dual licensing function: the licensure of operators (3); and the licensure of the facility for the beauty salon. (4)

The License Application Saga:

According to the testimony of plaintiffs, the license application was first initiated by Ms. Holmes toward the end of 1985 or early 1986. Ms. Holmes testified that she had taken the application to all the agencies and everything had checked out up until the Cosmetology Board.

Plaintiffs further testified that on or about the 11th or 12th of February, 1986, the application was taken personally by both of them to defendant Makaiwi as chairman of the Cosmetology Board. In the discussion that ensued, Makaiwi was apprised of Ferstle's recent graduation under the State of California's requirements. Makaiwi then opined [7ASR2d32] that Ferstle would not be eligible under the BCA to be licensed as an "operator" in that the statute , which contained a reciprocity measure, also required a practical working experience of 3 years within the last 5 years immediately preceding the license application. What followed in the discussion was not clear to the Court, but the plaintiffs left the meeting with certain impressions. Their understanding was that Carol Holmes, with her Washington State certification, would demonstrate proof of qualification under the BCA as an "operator" for purposes of licensing, and that in the interim, they could proceed to open for business. Plaintiffs in their recollection were sure that Ms. Makaiwi had signed and approved the application for them to open for business, pending Ms. Holmes' proof of practical experience.

Ms. Makaiwi on the other hand cannot recall signing anything as she was only one member of a board. In retrospect, she had no personal objection to the business being opened at the time provided Ms. Holmes could satisfy the Cosmetology Board of her practical background. She recalls advising plaintiffs that the board was convening in a matter of days and would take up the application.

The salon, still known as "Mr. Paul's", was reopened on February 14, 1986. Ms. Holmes was clear on this date as it was Valentine's Day.

In reviewing the numerous documented exhibits received into evidence, we find that a copy of plaintiff Ferstle's actual application for a business license affirms Ms. Makaiwi's recollection as more accurate. The application is dated 2/14/86, Valentine's Day, and the Court notes that the section in the form for approval or declination by the Cosmetology Board is unsigned. The Court also notes on the application that the various other approving agencies that signed off on the form all did so on 2/20/86, which was after the time the meeting with Makaiwi was said to have occurred. In point of fact, even if Ms. Makaiwi had signed off on the application, in derogation of board function, a business license could not have been issued any earlier than February 20, 1986. Therefore, the salon was opened on February 14, 1986 prematurely and in violation of the licensing laws. [7ASR2d33]

On or about February 19, 1986, the Cosmetology Board convened and included in the board's agenda were the two license application: that of Ms. Holmes for board approval as an operator, and that of Ms. Ferstle for approvalof the facility as a salon. The minutes of the meeting contain the following entry:

The Board had asked both Mrs. Ferstle and Mrs. Holmes to
submit their Cosmetology licenses and official working
experience reference for the Board's evaluation. (Emphasis theirs).

Apparently as a result of this meeting, Chairman Makaiwi telephoned Ms. Ferstle and advised her that the salon could not be licensed until the board received proofs on the practical experience requirement under the BCA. Plaintiffs' testimony was that the salon closed thereafter.

Two days afterward, on February 21, 1986, a quorum of the board reconvened to consider a telex message submitted by plaintiffs. The telex on its face showed transmission origin as the United States Coast Guard Center in Seattle, Washington, its text stated: "Carol Holmes was employed as a part time hairdresser for the past eight years with the CG Exchange" , and i t was sent under signature of Warrant Officer W.H. Hoit. Added and typed to the bottom left corner of the telex sheet was a "True Copy Certification" notation and the signature of a Lt. J.M. Holmes, USCG, Coast Guard Liaison Officer to the Government of American Samoa. Also appended to the telex was a memo under letterhead of the U.S. Coast Guard, Liaison Office, American Samoa, from Lt. Holmes to the Cosmetology Board. The memo bears the date "21 Feb. 1986" and the text is reproduced as an appendix hereto.

At this meeting of the Cosmetology Board, two of its members were absent. Those present were defendants Makaiwi and Lefiti and the board's secretary, Mrs. Howland. The minutes prepared by Mrs. Howland indicated two things that bothered the board. One was the fact that the certifying Lt. Holmes was the husband of plaintiff Carol Holmes. Secondly, the board took umbrage with the suggestive references in Lt. Holmes' memo about cross checking the validity of the telex with the Governor's Office, coupled with the warning that the Office of the Governor was to be informed if [7ASR2d34] problems arose with the board's acceptance of the telex.

Needless to say, Lt. Holmes' approach to the board was atypical of a liaison. He did Ms. Holmes no favors that day by, in effect, inviting suspicion and an appropriate degree of scrutiny from the board on the sufficiency of the offered telex showing. Although not reflected clearly in the minutes, Ms. Makaiwi mentioned another factor that inclined the board away from accepting the telex as sufficient. This was a reference in the telex to Ms, Holmes' employment as a "part time'. hairdresser for the previous 8 years. The board was uncertain whether 8 years "part time" could equate with 3 years "full time" as the statute appeared to the board to require.

The board voted against accepting the telex, but further decided to seek a legal opinion on the matter. The minutes reflect a meeting with Assistant Attorney General Griesmann that afternoon. He concurred with the board action and agreed to document his opinion, upon board insistence.

The actions, or inactions, of the board prompted Lt. Holmes, as his memo had promised, to take the licensing case up with a number of senior staff members in the Governor's Office, He testified that he also saw the Lt. Governor as well as the board's counsel Griesmann. His complaints did not go without sympathy. Defendants testified that they variously began to receive repeated telephone calls at their respective places of employment, from different staff members regarding the delay in approval of plaintiffs' license applications.

The position of the staff members was explained in the testimony of Ms, Cher Vink, Special Assistant to the Governor. She testified that the license application matter came to her attention some time in late February or early March, 1986. The application and the Cosmetology Board was the subject of several discussions with the staff. There was dissatisfaction expressed over public complaints about frustrating delays in the licensing procedure.

On the other hand, the given by the testimony of board's concern, as defendants, was the [7ASR2d35] staff's inordinate interference with the board's duties over this particular application. Ms. Makaiwi testified that this particular application was the subject of more board meetings than any other she could recall, in the attempt to accommodate plaintiffs.

Added to the board's perceived difficulties was confusion over the fact that their counsel had not only failed to give them the written opinion expected, but had also changed his opinion of the sufficiency of proofs. (Mr. Griesmann had departed the territory by the time of trial, however a transcript of his earlier deposition was stipulated for admission into evidence.) Counsel's change of mind came about after having been presented by plaintiffs' counsel, William Reardon, a photocopy of Ms. Holmes' Washington State Cosmetology license. He deposed that this appeared to be sufficient information upon which to grant a license.

The board next met on March 14, 1987 and according to the exhibits in evidence, Attorney Reardon had earlier presented Ms. Makaiwi the Washington State license of Ms. Holmes, and left her a copy thereof. Presumably, this copy was before the board's consideration in their meeting of March 14, 1987, but it apparently did not weigh sufficient with the board as demonstrating the practical requirement, notwithstanding counsel Griesmann's views. The minutes of that day contain the following entry:

The Board has not yet received from both Mrs. Carol Holmes
and Mrs. Bobbie Sue Ferstle their official working experience
references as they were asked by Chairman Makaiwi.
(Emphasis theirs).

The events of March 14, 1986 did not conclude here. The board decided to tell their side of the story to the Governor. Ms. Lefiti and Ms. Howland met on behalf of the board that same afternoon with the Governor. The agenda earlier determined and presented to the Governor was: the board's request for new counsel; the board's complaint about the active role taken by certain of the Governor's staff in the case of plaintiffs' license application; and finally certain concerns of the membership regarding the legality of the board's then composition and uncertainty over the tenure of [7ASR2d36] 3 of the members. Two of these matters require further elaboration.

Counsel Griesmann's change of position revived with the board an old tension in their relationship with counsel, giving rise to membership questions regarding, and we quote, "his loyalty". The board had on earlier occasions requested of both the Governor and the Attorney General assignment of different "impartial" counsel. The board had considered counsel Griesmann to be unresponsive on earlier occasions and at times unable to discriminate his duties to the board from his other role as director of the Consumer Protection Bureau in situations of conflict. (5)

In the area of membership makeup and tenure uncertainty, the board's concerns were as follows. The BCA requires that at least 2 board members be licensed operators. In fact, the board as then constituted had one such member, Ms. Lefiti. The board suggested to the Governor that either Ms. Makaiwi or Ms. Howland would offer to resign to permit the appointment of one other licensed operator. The membership recommended Ms. Dorothy Tarasawa. Secondly the board pointed out what was to them a typographical error in the Executive Memorandum containing the formal appointments of its most recent members, namely, Ms. Howland, Ms. Galea'i, and Mr. Ivi Peneueta. This Executive [7ASR2d37] Memorandum #002-1986, dated January 2, 1986 had provided term expiry dates for all the 3 new members as being March 20, 1986, which literally meant tenure of some 77 days, and not reflecting the 3-year staggered terms required by the BCA. The board requested that corrective action regarding the apparent oversight be taken accordingly.

As it happened, the Governor's staff had a different approach in rectifying these composition concerns, and more will be said of it later.

As noted above, notwithstanding production of Ms. Holmes' Washington license, and attorney Griesmann's opinion thereon, the board in its meeting of March 14, 1986 was unpersuaded that the proofs (i.e. the telex and Ms. Holmes' Washington certificate) had sufficiently demonstrated 3 years of practical experience.

This conclusion appears to have been anticipated by Ms. Holmes. At her request, a letter under United States Coast Guard letterhead, dated March 10, 1986, was mailed to Ms. Holmes bearing the following communication: "In reference to your telephone call this date. This letter is to certify to the fact that you were employed as a hairdresser with the CG Exchange for the past eight years." The letter was signed by W.H. Hoit, Chief Warrant Officer, and with the notation: "By direction".

On or about March 17, 1986, Ms. Holmes supplied her lawyer, Mr. Reardon with the said letter along with her written instructions indicating a desire to conclude the license that day with the hope of opening for business on the following. In accordance with his client's request, Mr. Reardon visited Ms. Lefiti at her salon that day (Ms. Makaiwi was at this time absent from the territory) to discuss the letter from the Coast Guard. Ms. Lefiti refused to discuss the matter at the time and advised counsel to await the return of board chairman Makaiwi. On the other hand, counsel persisted in attempting to persuade Ms. Lefiti to sign something.

The exchange ended on a less than cordial note. Ms. Lefiti in her testimony reacted to being, in her words, "harassed " by counsel at her salon while she was working on a customer with [7ASR2d38] chemicals. She refused to sign some" paper which counsel was insisting she sign. The Court learned nothing further of this piece of paper.

On the following day, counsel prepared a letter addressed to the Cosmetology Board demanding that the board convene within 48 hours with notice to his clients and for the board to sign the business license application. The letter was delivered to Ms. Lefiti on March 19, 1986 with distribution list to: the Governor's Office; Mr. Griesmann; and board members.

Paper was met with paper. A letter was prepared by Ms. Howland and dated March 20, 1986, signed by both herself as Secretary and by Ms. Lefiti as Acting Chairperson. The letter was addressed to the Attorney General with a corresponding distribution list, including Mr. Reardon. The letter set out the board's reasoning in not accepting the telexed message, and further acknowledged the Coast Guard letter of March 10, 1986, which would be acted upon only by the board when it convened after the return of the chairman in the following week. The letter further noted the board's refusal "to be directed, and intimidated by Mr. Reardon's time frame of 48 hours for the Board to convene." It concludes with reiteration of the request for different counsel.

From this point in time, the licensing saga is next placed at the Governor's Office. We above noted the board's concerns regarding composition and tenure and its recommendations for corrective action. The staff action taken in connection herewith was altogether different. Another Executive Memorandum, #37-86, was prepared and presented to the Governor for execution and made effective March 20, 1986. The memorandum had the effect of removing the three "short term" appointees, while substituting three new members, including the prior board's recommendation of Ms. Tarasawa.

The following day produced a bizarre turn of events which placed the Governor in a compromising situation. Ms. Lefiti testified that she had received a telephone call from one of the secretaries at the Governor's Office to assemble the Cosmetology Board for a meeting with the Governor on March 21, 1986. She was given no idea what the agenda might be and accordingly the rest [7ASR2d39] of board (as Ms. Lefiti still believed them to be) was equally in the dark as to the purpose of the meeting. Similarly, counsel Griesmann was notified of the meeting and his deposition reveals that he had no idea of the purpose thereof.

On the evidence, the Governor was only expecting to formally announce and greet the newly constituted board as had been a practice in the past. On the other hand, Special Assistant to the Governor Lydia Faleafine testified that in the normal course of announcing new memberships on boards and commissions, the practice has been to notify outgoing members first, before announcing the incoming members. This did not happen in this instance and Ms. Faleafine was at a loss as to why there was a departure from practice.

As it happened, a number of people congregated at the waiting lounge of the Governor's Office without any concerted idea as to the purpose of the gathering. They comprised the old members of the board, the new members, and attorneys Griesmann and Reardon.

At the actual meeting with the Governor, Ms. Lefiti was the only old board member called to attend, along with the new members as well as counsel. Certain of the replaced and excluded members, upon ascertaining the situation, were vociferous in expressing disgust with the whole affair as a humiliation and a waste of time away from normal routine. Further, in reaction to a number of matters associated with plaintiffs' licensing case, Ms. Howland had taken along to the meeting a strongly worded letter of resignation, which became more opportune for tendering at the time.

Inside the Governor's Office, the meeting also escalated to a lively discussion tone, and while the evidence was not clear on how the matter arose, the merits of plaintiffs' license application became a part of the agenda. The Governor rightly prevailed by deferring the issue to the new Cosmetology Board and closed the meeting. We find [7ASR2d40] no further evidence of staff involvement after this date. (6)

One further matter for mention, which is chronologically contextual at this point is that Mr. Paul's opened its doors for business as a "barber shop" .While plaintiffs' efforts to secure board approval continued to remain pending, the dialogue between counsel gave rise to the suggestion that a business license be also sought to operate a barber shop. Mr. Griesmann took the view as the Consumer Protection Bureau Director that barber shops were not covered by the BCA, and in point of fact, the Cosmetology Board had subscribed to this policy. (7) Ms. Makaiwi testified [7ASR2d41] that she was contacted by the Development Planning Office on the barber shop application, and she declined jurisdiction.

A barber shop license was issued on March 20, 1986, and on March 22, 1986, plaintiffs resumed business.

We come now to March 24, 1986, and a new set of characters enter the picture. Police Officer Marlene Moana visited Mr. Paul's on this day where she encountered Ms. Holmes working with a customer. In Officer Moana's words, she observed Ms. Holmes using a "curling iron" to curl hair and determined that Ms. Holmes was acting in violation of the BCA. She placed Ms. Holmes under arrest and took her to the police station. At the station Ms. Holmes, with the attendance of her counsel, Mr. Reardon, was put through the booking procedures and then released. The officer prepared and forwarded her report to the Attorney General's Office with the recommendation for prosecution.

Officer Moana expressed her disappointment as a police officer that the Attorney General's office had chosen not to prosecute. She testified that on the day prior to the arrest, she was summoned by the Commissioner of Public Safety and was assigned to investigate complaints about certain people undertaking hairdressing work without the appropriate approvals from the Cosmetology Board. In the course of her investigation, she researched the BCA and searched the licensing records at the Office of Development Planning, talking to a Mr. Petelo Uti. Mr. Uti referred her to defendant Makaiwi as someone from the Cosmetology Board to interview. She interviewed Ms. Makaiwi, and in relation to Mr. Paul's, Ms. Makaiwi informed her that the owner Ms. Ferstle had applied to the board for a license to operate a beauty salon facility and was turned down. She was, however, aware that Ms. Ferstle had a barber shop license. With regard to Ms. Holmes, the board had also turned down her application for a hair styling license.

As a result of her investigations, Officer Moana visited three establishments, including Mr. [7ASR2d42] Paul's, where the arrest was made. At the other places she visited, the officer found the facility located at the Pago Plaza center open, but without customers. She also visited a shop at the Rainmaker Hotel and found the same locked in the morning. She again checked this shop in the afternoon, and while it had opened, she found no customers there at the time.

Ms. Holmes testified that while no force or verbal abuse was used by the officer in effectuating arrest she was extremely upset and afraid over the whole thing. She was convinced in her mind that the police were sent to the shop by the Cosmetology Board to harass her and Ms. Ferstle. She suffered bouts of insomnia after arrest and was unable to settle down with any comfort at work. The fear associated with the experience visited her recurringly and about a week after the arrest she took a vacation off-island.

Ms. Holmes returned from vacation and was uncertain about wanting to return to work. She did at some time decide to go back to Mr. Paul's but was not hired again. She stated that her relationship with Ms. Ferstle had deteriorated and she worked for some time at another facility and did not continue for too long thereafter. She has resigned that it is not necessary for her to work again and relive the possibility of encountering the police again. She is aware that sometime in May, 1986, a conditional license was eventually given by the board but she has ceased from practicing since October or November, 1986.

We find the next meeting of the board, newly reconstituted, as having taken place sometime in early April 1986. The Court was not provided minutes of this meeting; at the same time, the oral testimony overlapped indiscriminately with dates and time frames. The Court was, however, supplied minutes for a 4/25/86 meeting and a 8/27/86 meeting. Unfortunately, these minutes are not free of dispute. First, Ms. Makaiwi as chairman and Ms. Annesley Dalton as the new secretary are at odds over whether the 4/25/86 minutes were supplied to and approved by the board. Second, the minutes themselves are contradictory in details of dates of prior meetings, prompting reservations about contemporaneity in their preparation. [7ASR2d43]

We gather, however, on the evidence that a meeting took place in early April, 1986 to consider the Coast Guard letter dated March 10, 1986 which attorney Reardon had taken up earlier with Ms. Lefiti.

Yet again, the board was not moved. Questions were raised focusing on the apparent conflict between the text of this letter and the text of the prior telex. Whereas the telex alluded to "part time" employment of Ms. Holmes with the CG Exchange, the letter which followed dropped the reference to "part time". The board resolved to inquire into the discrepancy themselves.

A letter was to have been written and sent off on behalf of the board to clarify Ms. Holmes' Washington State work experience. Ms. Makaiwi was of the understanding that Ms. Annesley-Dalton would write the letter. Ms. Annesley-Dalton however was of the understanding that Ms. Makaiwi, as chairperson, would write the letter. In the interim, the annual Flag Day had arrived and necessarily, Ms. Makaiwi, as an employee of the department responsible in Flag Day preparations, did not call a board meeting until April 25, 1986.

At the 4/25/86 meeting of the board, the mixup with letter writing was confronted, and it was resolved that Ms. Makaiwi would compose a letter to be sent by registered mail, with each board member contributing $1.00 for postage. A letter went out under date April 26, 1986 to the board's Washington State counterpart, seeking verification that Ms. Holmes has had three years previous working experience and that she holds a current license with Washington.

We find another letter dated May 9, 1986 from the chairman of the board and addressed to Ms. Holmes referencing a board meeting of May 3, 1986, whereby it was decided that a provisional license be issued to Ms. Holmes, subject to verification of practical background. No minutes were supplied us of this meeting for details.

A business license was eventually issued to Ms. Ferstle to operate Mr. Paul's as a beauty salon subject to the conditional nature of Ms. Holmes provisional license, and subject to Ms. Holmes' remaining to work with Mr. Paul's to satisfy the [7ASR2d44] BCA's requirement that no facility license may be granted without a licensed operator aboard.

DISCUSSION

Our initial conclusion on the facts is that much of the tedium that arose with the evidentiary hearing in this matter could have been avoided if the parties had taken a little more time and effort with adequate pre-trial discovery. The defendants, while acquiescing in plaintiffs' trial setting requests, were content with a series of piecemeal summary judgment motions (even at the eve of trial) with apparently little concern for factual background investigation.

Plaintiffs on the other hand took much trial time to dwell on some potential theories which the evidence came no where close to sustaining. Consequently, the issues were ill defined and to the close of arguments it was apparent to the Court that plaintiffs' claims concerned the entire spectrum of any and all conceivable constitutional violations which might be subject to the remedial provisions of the federal Civil Rights Act, 42 U.S.C. sections 1983 and 1985. It was further suggested that there were remedies of a local nature which may arise, or ought to arise, by analogy with the mentioned civil rights enactment.

We turn to those theories of plaintiffs which should not have been considered had there been adequate pre-trial discovery.

The first of these would concern deprivation of rights through the board's alleged "revocation" of plaintiffs' licenses without procedural due process. As might be gathered from the above, there was much oral testimony, both direct and in rebuttal, concerning the date and time frame of the initial license application. The significance of this fact was that plaintiffs took the position that when they had first met with defendant Makaiwi, all other relevant government agencies had signed off their respective approvals on the license application. Plaintiffs were also sure that Ms. Makaiwi had signed in approval as well, and thus, they claim that a license was granted. It is claimed that they accordingly opened for business on Valentine's Day only to have their license revoked a few days afterwards when Ms. Makaiwi called to advise that a license could not [7ASR2d45] issue. In response at trial, Ms. Makaiwi was examined at length and testified to the contrary.

This dialogue on the stand, as it turned out, was entirely unnecessary had either party initially focused on the information given in the written license application itself. (8) This document revealed that neither Ms. Makaiwi nor the other agencies had at the time signed off on the application, hence the possibility of a license grant never occurred. A "revocation" without procedural due process argument therefore was totally misplaced. There was never a license to revoke in the first place.

Secondly, much of plaintiff Holmes' efforts centered on alleged deprivations consequent to arrest. We assume that the rights claimed as infringed concerned unlawful restraint of liberty and unreasonable search. (9) As it happened, the arresting officer was not made a party to the proceedings; therefore any actionable conduct by the officer would have to be attributed to the named defendants as co-conspirators, or imputed to the said defendants upon some cognizable theory of vicarious liability. Against this, the only direct evidence presented by Ms. Holmes was to the effect that she was sure in her mind at the time that the police had been sent by the Cosmetology Board to harass her and Ms. Ferstle.

The evidence of Officer Moana, on the other hand, which would have been available on pre-trial discovery, was that: the Commissioner of Public Safety had directed her to instigate the investigation a day or so before hand; she researched the BCA herself for the enactment's [7ASR2d46] requirements; her initial inquiries with the license records office referred her to, and led her to interview, the defendant Makaiwi; she investigated a number of salons on the day in question, including Mr. Paul's; while at Mr. Paul's, and based upon her own visual determination that a misdemeanor was being committed, she executed the arrest. (10)

After examining Officer Moana's written investigation reports, we find nothing untoward her testimony given. Even Ms. Holmes retracted noticeably on the stand, when asked about her impressions of Officer Moana's testimony. Plaintiffs had no evidence, apart from intuition, approaching a conspiracy theory.

For reasons of insufficient evidence, the Court rejects all claims against defendants premised on the hypothesis of conspiracy, collusion, or otherwise acting in concert with the arresting officer.

We are further unable to find on the evidence any issue of equal protection. There is nothing to suggest "purposeful discrimination", Snowden v. Hughes, 321 U.S. 1 (1944), let alone evidence of any discrimination at all whether purposeful or otherwise. Nor do we find anything in the board's withholding of the license as being "completely arbitrary and discriminatory" so as to constitute a denial of equal protection. Niemotko v. Maryland. 340 U.S. 268 (1951). Plaintiffs contend that while they had supplied to the board all the information which the board required, the license was nonetheless refused; from this plaintiffs infer a violation of equal protection in that they regard themselves as having been treated differently than others similarly situated. The evidence was to the contrary.

First the BCA standards governing license qualification or eligibility are clearly articulated, and the validity of these standards is not challenged. Section 31.1504 of the BCA (A.S.C.A. § 31.1504) reads in pertinent part: [7ASR2d47]

(a) An operator may be licensed as a hairdresser and cosmetician
provided the person is of good moral character; and
(1) is currently licensed to practice hairdressing in any state of
the United States and has practiced as an operator for 3 out of
the 5 years immediately preceding the application for licensure.

In the case of Ms. Ferstle, there can be no dispute with her ineligibility for licensure as an operator as she had only recently obtained certification from the State of California. She lacked practical standing.

Ms. Holmes on the other hand satisfied the first requirement of the enactment, to wit: currently licensed in another state. She was further required to demonstrate three years of practice within the preceding five year period. There is nothing mystical nor abstruse about this legislative directive and the standard having being legislative prescribed, what remained for the Cosmetology Board was a determination of factual issues and the application of the statutory criterion to them. The evidence was quite clear that plaintiffs were informed throughout the application process that the issuance of their licenses could not take place until they demonstrated that they had met one of the established standards, the practical experience requirement. Again, we stress our inability to find anything complicated about this standard that would require further elaboration by way of regulation or otherwise.

In viewing what plaintiffs had supplied the board, we find nothing arbitrary or capricious with the board's conclusions of insufficient showing. (11) We also note that the board is a fact finding body with a quasi judicial function, charged with the [7ASR2d48] responsibility of examining qualification as legislatively prescribed. The board cannot be merely perfunctory in its duties given the social dangers which brought about the need to regulate the beauty treatment industry. The licensing of people who propose to work on the public with chemicals cannot, and should not, be undermined as a mere formality. As noted on the evidence, the Fono did not act on a perceived danger (beauty treatment was hardly culturally ingrained in the early 1970s) but on an actual and serious complaint. Further, the importance of maintaining proper implementation of the statute was again brought home vividly with the recent revocation of a license owing to another instance of severe chemical burns suffered by a member of the public.

In response to advice from the board for proof of practical experience, Ms. Holmes first presented a telex from the Coast Guard to certify that she had been employed by the Coast Guard Exchange for the past eight years as a "part time" hairdresser. This was not acceptable to the board for reasons above discussed. Again in response, Ms. Holmes subsequently supplied a letter from the same Coast Guard official with two variations to the content of the telex. That is, the reference to "part time" is dropped, and the official signed off with the notation "By direction." These variations are not without question. Ms. Holmes also supplied a copy of her State of Washington license which certified "standing" alone but not "practice." Again this was insufficient to the board, notwithstanding an intolerable amount of outside pressure to approve the licenses. The board stuck to its opinion and undertook to do some cross checking itself. It was either cross checking or a relenting to pressure that eventually gave rise to a provisional license.

Suffice it for us to say, however, that the conclusions arrived at by the Board cannot be said to have patently weighed against the proofs offered.

We accordingly conclude against any denial of equal protection.

We look to the remainder of plaintiffs' due process claims. As held above, plaintiffs' claims of due process denial based on a license "revocation" situation are without foundation. [7ASR2d49] Alternatively, plaintiffs have contended that the board had failed to provide them a hearing and thus an opportunity to be heard on the board's refusal to issue the licenses. This argument asserts a denial of procedural due process and presupposes that plaintiffs have a "property" and a "liberty" interest in the licenses sought, as these terms appear in the language of the Fourteenth Amendment.

Assuming that plaintiffs have such a protected interest, we hold for reasons given below that there was not a denial of due process in the circumstances.

It was explained by the Supreme Court in Mathews v. Eldridge, 424 U.S 319, 334 (1976) that

[d]ue process, unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances. (Citation omitted.) [It] is flexible and calls
for such procedural protections as the particular situation
demands.

Noting that the judicial model of an evidentiary hearing was neither required nor appeared to be the most efficacious method of decision making, the court generally stated that "the essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and an opportunity to meet it." Id. at 348. Thus the requirements of due process contextually vary with the circumstances and the particular demands of the case. The only constant factor apparent with the Court in the review of its prior decisions is "that some sort of hearing is required before an individual is finally deprived of a property interest," Id. at 333 (emphasis added). See also Parratt v. Taylor 451 U.S. 527, 540 (1981). The opportunity to be heard is an opportunity which must be granted "at a meaningful time and in a meaningful manner." Mathews, supra. In Parratt, the court took care to point out that "at a meaningful time and meaningful manner" did not always mean a hearing opportunity prior to the initial deprivation of property. In Mathews a pre-deprivation hearing was seen as the exception "from the ordinary principle, established by [the] decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." Id. at 343. [7ASR2d50]

In the light of these observations, we find on the factual circumstances before us that plaintiffs were in fact accorded more process than due. Firstly, there was no adverse administrative action by the Cosmetology Board that constituted a "final" deprivation of property that would trigger the due process requirements of notice and an opportunity to be heard. We find nothing suggestive on the evidence that the Cosmetology Board's actions were tantamount to a denial of the license. Indeed, the resultant procedure utilized by the board approximated notice and the opportunity to be heard. Plaintiffs were advised from the outset, not only by the clear mandates of the BCA but by Ms. Makaiwi, that plaintiff Holmes would have to demonstrate proof of the BCA's practical requirement. Ms. Holmes supplied a telexed communication which the board promptly considered. Plaintiffs were advised of the board's findings of insufficiency and the proceedings did not conclude there. Plaintiff Holmes then tendered a further Coast Guard communication as well as her Washington State license. Again the board gave consideration to these proofs and finding the same to be inconclusive of the BCA's criteria, their decision was made known to plaintiffs. Yet again, the proceedings did not terminate there. The board had not issued a denial and the proceedings were open to further submission of proofs. (12) Had the board [7ASR2d51] proposed any final action to deny the application, a due process proceeding would then be required, See A.S.C.A. § 31.1508, and the hearing demanded by plaintiffs would be appropriate. Mathews v. Eldridge, supra; Parratt v. Taylor. supra.

Indeed, the interim procedures utilized by the board were constitutionally sufficient when considered in the light of the criteria announced in Mathews, 424 U.S. at 335, namely; (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and th"e fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The private interest concerned in this matter is a benefit in expectation subject to articulated standards of qualification. Proof of this qualification is within the plaintiffs' control and any prejudice due to delay is also within that control. As plaintiffs were initial applicants they suffered no prejudice or loss through a change in status owing to any action or inaction on the part of the board that is apparent on the evidence. Indeed, the benefit under consideration is even more contingent than the benefit considered in Mathews. supra. In Mathews, the benefits considered were medical disability payments which were terminated through an interim procedure pending further investigation and showing of a continuing medical disability. In a sense, this was an accrued benefit and not one in expectation.

Turning to the second criterion, we cannot conclude that there was a risk of erroneous deprivation of interest owing to the procedures used by the board. As stated above, the procedures afforded procedural due process although undertaken in a piecemeal fashion. Plaintiffs were advised of the needed showing, and responded with a series of [7ASR2d52] proofs. In turn they were appraised on the inadequacies of the tendered proofs.

In any event, we do not see how the board's resultant conclusions could have been otherwise even if the opportunity to be heard had been granted in the manner now demanded by plaintiffs rather than in the way the situation actually unfolded. The only proof tendered with this demand was the referenced Coast Guard letter transmitted "By direction" and so blatantly at variance wi th the content of the prior telexed communication. In these circumstances, it is not for the Court to say that a reasonable fact finder could not have. concluded as did the board.

Finally in terms of territorial interest and fiscal considerations, we do not find that the proceedings initially used by the board are without place. As stated in Mathews, 424 U.S. at 348, "[t]he ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness." It is consideration of administrative efficiency as necessarily limited by the standard of fairness.

With the Cosmetology Board's procedures, the majority of the cases ought to be settled without the need for a judicial type hearing. If the BCA's objective standards are met, there is no discretion with the board but to issue the license. See A.S.C.A. § 31.1503(a). As noted above, there is nothing difficult about these standards, and in the normal course, license approvals would be straight forward if applicants show ready compliance with the burden of proof expected of them. It follows therefore that the need for a judicial type hearing on every application, with attendant consumption of time, money, personnel and the like, is not optimum. These hearings are only required when proposed board action is to be final. This is our reading of A.S.C.A. § 31.1508 and as long as there is room for administrative efficiency ---the board keeping its proceedings open for further consideration of proofs ---without compromising fairness, the requirements of procedural due process will not have arisen.

We conclude that an evidentiary hearing was not required herein and that the board's proceedings were fully in comport with due process. [7ASR2d53]

For the foregoing reasons judgment is entered in favor of the defendants.

APPENDIX "A"

TO: COSMETOLOGY BOARD
SUBJ: PROOF OF EMPLOYMENT

1. THE ENCLOSED, IS A MILITARY COMMUNICATIONS DISPATCH SENT FROM THE COAST GUARD COMMUNICATIONS CENTER IN SEATTLE WASHINGTON. AS THE PERSONNEL IN THE OFFICE OF COMMUNICATIONS WILL VERIFY, IT CAN NOT BE FORGED AND A LASTING RECORD OF IT IS AVAILABLE UPON REQUEST THROUGH THE U.S. MILITARY. IN ADDITION, I HAVE NOTARIZED THE COPY AS A DULY DESIGNATED NOTARY UNDER FEDERAL LAW. I HAVE ALSO TAKEN THE TROUBLE OF CHECKING THE VALIDITY OF THIS DOCUMENT WITH THE OFFICE OF THE GOVERNOR. THEY STATED THAT IT IS QUITE ACCEPTABLE AND THAT IF ANY PROBLEM ARISES OVER ITS ACCEPTANCE, I SHOULD LET THEM KNOW. THANK YOU FOR YOUR ASSISTANCE ON THIS MATTER. IF THERE ARE ANY QUESTIONS ABOUT THE DOCUMENT, I WOULD BE HAPPY TO ANSWER THEM.
/s/LT J.M.HOLMES

**********

1. A.S.C.A § 27.0209.

2. A.S.C.A § 27.0212.

3. A.S.C.A § 31.1504, Licensure of Operators.

4. A.S.C.A § 31.1505, Licensure of Beauty Salons.

5. The merits of the board's complaint are not at issue and warrant no comment from the Court, save to the extent that we need to mention the fact that a strain in relationship occurred. This is not to take anything away from counsel. His situation in the Territory highlights the peculiarities of a small community attempting to rise to meet growing demands of the modern day, necessitating a greater degree of multifarious roles being imposed upon individuals often without any corresponding increase in personal economic gain. Just a few years back, there was no Board of Cosmetology or Consumer Protection Bureau. Ironically, the members of the board, as is the case with those of other executive commissions, are themselves volunteers and have taken on these added duties in the name of civic responsibility.

6. The involvement of the Governor's staff in the licensing proceedings was inappropriate. Given the above-noted 1983 Amendment to the BCA, licensing jurisdiction under the enactment was vested in a Cosmetology Board, created to displace the Governor's office from involvement in the Act's administration.

7. This policy is interesting, although somewhat curious. The term "hairdresser" as defined in the BCA ostensibly extends to what barbers traditionally do, that is, "cutting... the hair of another person". See A.S.C.A. § 31.1502(e). However the effect of policy has been to recognize or establish a special classification, "barber", as exempted from the regulatory scope of the BCA. The terms "barber" and "barber shop" do not appear in the BCA although counsel has referred us to certain health regulations in the American Samoa Administrative Code §§ 25.0201 et seq., where the terms "barber" and "barber shop" are in fact defined and respectively treated as synonymous with the terms "beautician" and "beauty parlor." These regulations were promulgated in 1964 by the Director of Health pursuant to the Facility Health Permits Act, now A.S.C.A. § 25.0501. This enactment has nothing to do with regulating, as a profession, barbers and beauticians. Its primary purpose is sanitation measures with facilities involving the public at large. Through the regulations, it requires, among other things, bathrooms with barber shops and beauty parlors. Hence the Health Department's involvement with the approval process of plaintiffs' application.

8. This document was admitted into evidence towards the end of trial, over defendants' objection, as an attachment to certain police reports moved into evidence for other purposes.

9. Cf. Stogner v. Kentuckv, 638 F. Supp 1 (W.D. Ky 1985). A warrantless search may be conducted of a pervasively regulated business or closely regulated industries [such as barbershops] long subject to close inspection and supervision. See also A.S.C.A §§ 31.1508, 31.1510.

10. 46 A.S.C.A. § 46.0805(4) not only authorizes a police officer, but makes it his duty, to make a warrantless arrest when a misdemeanor is committed in his presence.

11. A reviewing court would probably have to take heed of the doctrine of primary jurisdiction. The social dangers prompting legislative regulation of the profession were significant. The regulatory board comprises not only a cross section of society but members of the profession themselves.

12. We are not unmindful of the possibility that an administrative agency might resort to recurring delay tactics which in the proper circumstances may amount to a denial of protected rights, but we do not feel that the circumstances here were such. Plaintiffs themselves could not escape blame for the delay as the burden was on them to expeditiously supply sufficient proofs as required by the BCA. See A.S.C.A. § 31.1503(a). On the contrary, it appears that plaintiffs gave up on further pursuit of proofs after supplying the referenced Coast Guard letter and were content to allow the licensing exercise to escalate to one of third parties ---the Governor's staff, the board's attorney, the new board membership, the Governor ---attempting to impress upon the board that the submitted proofs were sufficient. The board on the other hand rather than issuing a "denial" then, as it could have, took upon itself the burden of seeking those proofs, and hence kept its proceedings open for further action and the opportunity to be persuaded otherwise.

Falefia v. Sipili,


FOLOLE FALEFIA on behalf of herself
and her heirs, Plaintiff

v.

ATOA SIPILI, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 28-85

January 5, 1988

__________

Testimony of litigant that at seventeen years of age he had personally entered into a boundary agreement with neighboring landowner, although at the time in question his father had been living and working on the land in question and had apparently honored a different boundary than that claimed by litigant, was not credible.

Court may not consider a claim to ownership of land by one who has not timely objected to registration of the land by another. A.S.C.A. § 37.0103.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant, Edwin Gurr

This matter arose upon plaintiffs' attempts to have registered with the office of the Territorial Registrar, a certain 6.53 acre parcel of land, "Soata", in individual ownership. Defendant, Atoa Sipili, lodged an objection to the extent that 1.65 acres of the northwestern extreme of the said parcel was his individually owned claim. The difference then in acreage is not contested, and accordingly such remaining portion of the land may [7ASR2d2] be registered in plaintiffs' name in accordance, and in compliance, with A.S.C.A §§ 37.0101 et. seq.

At issue before the Court is entitlement to the 1.65 acres.

The lands contiguous to "Soata " have all been surveyed and registered with the Territorial Registrar. To the east or, airport side of "Soata", some 8.67 acres, was registered by Sipili Atoa, the father of defendant, in 1983. To the north or inland side, the land is bounded by a survey earlier established by one Otto Haleck. The western or Ili'ili side of "Soata" has a common boundary to a survey made by one, Misi Uaita, who in turn conveyed his interests to a Opapo Afualo. The southern boundaries to all these lands is the FAA dedicated road, a public highway.

Plaintiff, Folole Falefia, testified that she, her late husband, and children first went upon the land in 1959 and began clearing the bush and commenced cultivation. She testified that in these earlier times, the only other in the area was defendant's father, Sipili, who worked the land from the airport side of plaintiffs. According to Folole, her family and Sipili co-existed in harmony, both sides working from the road way and clearing inland over the years. Boundary disputes were peaceably resolved and plaintiffs stated that they continued clearing the land until they encountered Otto Haleck to the north. They claimed that they have maintained their plantations to date on the whole of this land and in 1978, some of plaintiffs' family actually built a residence on the property.

Mrs. Falefia further testified that in 1983 her family received notice of Sipili's 'application to register title to the lands he had cleared. She consulted Sipili at the time and determined that the latter's survey tracked their common understanding with the boundary and accordingly, did not object. Sipili's claim was accordingly registered.

In the following year, plaintiffs reduced their claim to a survey for purposes of registration and in making their offer to register, defendant Atoa Sipili objected as stated. According to plaintiffs, the defendant Atoa Sipili [7ASR2d3] shortly thereafter in 1985, crossed over the boundary established by plaintiffs with Sipili, and began planting crops on plaintiffs' claim.

Defendant's version on the other hand is as follows: some time in the year 1956, prior to there being a road, he had met the late Falefia in the vicinity. Falefia was clearing at that time at what is now the opposite side of the roadway, and he eventually proceeded over to the direction of defendant's clearing. Atoa went on to state that, at the time, there was an Aoa tree located on what is now their common boundary towards the northern end, and that he had come to an agreement with Falefia, at the time, that whoever of the two reached the Aoa tree first could cut across the natural direction of the other's clearing. Atoa claims that he reached this Aoa tree first but found that someone else had, at some time earlier, felled trees in the location. This someone, he later determined to be Misi Uaita. What was left uncleared by Misi Uaita, he, Atoa, completed in clearing and then commenced to plant crops in certain areas of the clearing. It is the supposed location of this Aoa tree which defendant claims as his point of beginning and his survey offered is essentially a straight line taken from this point of beginning to the opposing parallel boundary of plaintiffs' survey.

In our assessment of the testimony and evidence presented, the Court finds in favor of plaintiffs. Defendant has attempted to impress the Court that it was his direction and control which resulted in his family's land stake. This is difficult to accept when the evidence was quite clear that defendant's father Sipili was concerned with establishing a claim to land from the outset. Given this finding, it is even more difficult to accept that defendant, as a 17 year old youth in 1956, would be entering into land pacts with the late Falefia without his father Sipili having a say in the matter.

We note the following as cogent: it was Sipili who cleared and cultivated alongside the Falefias throughout the many years involved in cultivating and developing the area; it was Sipili who registered his entitlement to the adjoining land "Mosooi" in 1983 and enjoyed the consensus of plaintiff as to the common boundary; Sipili's 1983 registered survey did not attempt to encompass an [7ASR2d4] additional area of land located in the natural direction of plaintiffs' cultivation and clearing which developed parallel to Sipili's on the airport side together with Misi Uaita to the Iliili side; Sipili did not object to plaintiffs' offer for registration; for so many years these developers have been at harmony until defendant came into the picture and commenced the desperate exercise of planting crops in 1985 on what was claimed by plaintiffs.

Defendant also presented an alternative premise to entitlement. He attempted to set up a claim through Misi Uaita. Misi testified that the disputed area either belonged to him or was originally cleared by him, and that he was reserving this area for defendant who wanted the same for a business.

The testimony of Misi is also difficult to accept. In 1973, Misi conveyed his interests to the land adjoining plaintiffs' claim to a Opapo Afualo. To these ends, Misi undertook the first survey in the vicinity. As a result of this survey, Misi's boundary with plaintiffs was reduced to metes and bounds and his survey was put through without objection from the Falefias. To claim at this later stage that he also has an interest in the disputed 1.65 acres, outside the boundary line he had established in 1973, can hardly be taken as serious contention. Notwithstanding, Misi has not objected to the registration offer by plaintiffs which includes the 1.65 acres. Pursuant to A.S.C.A § 37.0103, any such claims he may have, may not now be considered. See Komiti Puluti v. Muliufi et. al 4 A.S.R. 672 (1965).

CONCLUSION

It is the conclusion of the Court based on the foregoing that the land in dispute is the property of Folole Falefia and her children. Accordingly, the objection made by defendant Atoa Sipili is held to be without merit and may therefore be disregarded by the Territorial Registrar.

Absent other third party objections timely made, the Registrar is directed to register the land "Soata" as more particularly described in DRWG No. 326-8-85, as the individually owned land of plaintiffs in accordance with their offer of [7ASR2d5] registration and compliance with the provisions of A.S.C.A § 37.0103(a).

It is so ORDERED.

**********

Faleafine v. Suapilimai,


FALEAFINE MUSU, Plaintiff

v.

MALIA L. SUAPILIMAI, TERRITORIAL REGISTRAR,
and DOES I-X, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 2-86

March 22, 1988

__________

In boundary dispute between two parties, where there is evidence suggesting that a neighboring landowner who is not a party to the case may be the true owner of some or all of the disputed land, the court will not quiet title to the land or otherwise adjudicate the rights of the nonparty landowner, but will decide which of the two parties has proved a better right to occupy the disputed land.

Straight line of tall coconut trees between two tracts of land is strong circumstantial evidence of the historic boundary between the tracts. [7ASR2d109]

Evidence that chief of neighboring family had pointed out a boundary line between two tracts of land, and evidence that party withdrew from disputed lands after such identification, is strong circumstantial evidence that occupants of disputed land once recognized the line as their boundary.

Where family removed dwelling house from disputed lands after boundary was marked but continued to use umu on same lands without objection by neighboring occupants, court may conclude that use of the umu was grounded in a historic license.

Registration of land not performed in accordance with statutory procedure is void. A.S.C.A. §§ 37.0102, 37.0201 et seq.

Offer of registration for communal land must be accompanied by survey requested by senior matai of the family; a family with a vacant senior matai title must select a senior matai before it can offer land for registration. A.S.C.A. § 37.0102.

Communal land may not become individual property except in accordance with statutory procedures for alienation of communal lands. A.S.C.A. §§ 37.0201 et seq.

Land registration performed in accordance with statutory procedures will be given full effect even though party who might have objected did not discover the proposed registration in time to object. A.S.C.A. §§ 37.0101 et seq.

That land registered in the name of one party can later be proved to have been property of person other than registrant will not void a registration otherwise performed in accordance with statute if the true owner did not object within the period prescribed by statute. A.S.C.A. §§ 37.0101 et seq.

Before REES, Chief Justice, AFUOLA, Associate Judge, TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant Suapilimai, Aviata Fa'alevao

This is a boundary dispute. The Court heard hours of testimony, quite fascinating in its own [7ASR2d110] way, on such questions as whether various people were or were not blood members of the Faleafine family and whether there was ever really a Faleafine Lui. Our task, however, is limited to determining the boundary between the Faleafine communal land called Lupelele and the adjoining land which defendant Leituala Malia Suapilimai registered in 1981 under the name Niua.

The facts are as follows:

1) The area in dispute is accurately displayed in plaintiffs' survey. Its area is slightly less than a fifth of an acre, and it is in the shape of a triangle with a narrow panhandle at the southeastern corner.

2) The Faleafine family has long occupied the land immediately to the west of the disputed area.

3) Members of the immediate family of defendant Malia Suapilimai (who since the commencement of this litigation has registered the matai title Leituala) have occupied the land immediately to the east of the disputed area for at least forty years.

3) It is unclear under what title defendant's family members lived on the adjoining land. According to the testimony of the defendant at trial, this has always been Leituala family land. Plaintiff's witnesses testified that the Leituala family has no communal land in this part of Ili'ili and that Malia's parents came to live there by permission of the true owner, Letuligasenoa. The latter version is supported by most of the circumstantial evidence: Both sides agree that Malia's mother was a member of the Letuligasenoa family. The land occupied by Malia and her family is adjoined on at least two sides by land belonging to the Letuligasenoa family or members thereof. On at least one occasion (discussed below) Malia's family seems to have recognized the authorityof Letuligasenoa over the land.

4) The disputed portion has been occupied or used at various times by both sides in this litigation. For at least twenty years prior to 1973 there was a small Samoan-style fale on the disputed portion occupied by various relatives of the present defendant. Her family still has an umu in the disputed area which has been there for many [7ASR2d111] years. The tract has also been occupied and cultivated, however, by members of the Faleafine family who have long had a dwelling house within a few feet of it. Both sides testified that for many years the members of the two families were quite friendly and that neither family cared whether a few square feet of its land was being used by the other. Maintenance chores were performed sometimes by one family and sometimes by the other.

5) On at least one occasion, however, there was a dispute between the two families about their boundary. In 1973 the occupants of the two households met with Chief Letuligasenoa, who walked the boundary line with them. Among those present were the husband, now deceased, of Felili Faleafine who now occupies the house just to the west of the disputed portion; the present defendant; and her husband, now also deceased.

6) Plaintiff's witnesses, including the daughter of the late Letuligasenoa, testified that the line he marked was along a line of coconut trees stretching from the road to a fence at the back of the property. The judges visited the site and saw that these trees do exist and do appear to have been planted deliberately in a straight line many years ago. The trees appear to be along the eastern boundary of the Faleafine survey.

7) Shortly after the boundary was marked, defendant's family removed the Samoan dwelling house, which had been on the Faleafine side of the line. They continued, however, to use the umu which was also on the Faleafine side of the line.

8) In 1981, when the occupants of the Faleafine dwelling (Felili and her late husband) were temporarily in Hawaii, Malia ordered a survey. The survey was done in the name of "Malia L. Suapilimai" rather than in the name of any family. It included the land to the east, of which she and her immediate family are the undisputed occupants, as well as the portion under dispute in this case. Malia subsequently offered the surveyed land for registration in the name of the "Suapilimai family." She testified at trial, however, that this was an error and that she meant to have it registered in the name of the "Leituala family." (Her testimony was that Suapilimai is a lesser title of the Leituala family. One of plaintiff's witnesses testified that both Suapilimai and [12ASR2d112] Leituala are lesser titles of the Lealaimatafao family.) Nobody objected to the registration within the statutory time period, and it was accordingly inscribed in the records of the Territorial Registrar.

9) When the occupants of the Faleafine dwelling returned from Hawaii they found that Malia and her family had begun to use the disputed portion from which they had temporarily withdrawn after 1973. The two sides then resumed the dispute which has culminated in this case.

From these facts we draw the following conclusions of law:

1) We need not reach the question whether the occupation of the land by Malia and her relatives was under the authority of the Letuligasenoa, Leituala, or Suapilimai family or of some other family. Neither the Letuligasenoa family nor any other neighboring landowner is a party to this case. (For this reason, we cannot possibly "quiet title" to the land as requested by plaintiff. We can only decide which of the parties in this case has proved a better right than the other to occupy the disputed land.)

2) The best evidence is that the historic boundary between the land occupied by the Faleafine family and that occupied by the neighboring landowner to the east was the line of coconut trees along the eastern boundary of the Faleafine survey. The very existence of a straight line of tall trees between two tracts of land is strong circumstantial evidence; that Letuligasenoa identified this as the boundary and that Malia's family then withdrew (and even dismantled a dwelling in the disputed portion) is even stronger evidence that both sides once recognized this line as the boundary. This is true whether the deference of Malia and her relatives to Letuligasenoa was based on a belief that their own claim to occupy the land was based on their status as Letuligasenoa family members; on respect for Letuligasenoa as a wise and just man who had long been familiar with the land in the vicinity; or on an independent belief that the coconut trees did in fact mark the boundary.

3) The best conclusion we can draw from the continued use of the umu by Malia and her family even after the boundary was marked and the dwelling [12ASR2d113] house demolished, and from the lack of any objection from the Faleafines until quite recently, is that this use was grounded in an historic license.

4) The registration of the disputed portion by Malia Suapilimai as part of "Niua" in 1981 did not change anything. The registration was not done in accordance with the statutory law of American Samoa, as appears clearly on the face of the registration documents themselves.

Malia Suapilimai had no authority in 1981 to register land on behalf of the Suapilimai family, the Leituala family, or any other family, since an offer of registration for communal land must be accompanied by a survey requested by the senior matai of the family. A.S.C.A. § 37.0102. The statutory language is absolute and admits of no exceptions; a family whose senior matai title is vacant must select a senior matai before it can offer land for registration. This is undoubtedly among the reasons Malia ordered the survey in her own name. See A.S.C.A. § 37.0102(d).

On the other hand, the land could not legally have been registered as Malia's individually owned land since its alienation to an individual was never approved by the Governor and the Land Commission as required by A.S.C.A. §§ 37.0201 et seq. (This land is in the center of the village of Ili'ili, just off the malae. It undisputed, and would in any case be beyond dispute, that the land has long been the property of some communal family or families of Ili'ili rather than having been recently cleared from virgin bush by some individual acting on his own account. It could not, therefore, have become individually owned property except in accordance with the statutory procedures for alienation of communal land.) This, we believe, is why Malia switched characterizations in mid-stream, calling the land that of "Malia L. Suapilimai" when she ordered the survey and of the "Suapilimai family" when she registered it . That Malia subsequently attempted to sell and lease portions of "Niua" (including the whole portion now in dispute) as her individually owned land suggests that she does not really regard it as belonging to the "Suapilimai family" or, as she now contends, the "Leituala family." In any case the registration violated the statutes and was null and void. [12ASR2d114]

5) We stress that we do not rest our holding on plaintiff's contention that a registration has no legal effect if it was done at a time when someone who might have objected to it was off the island. Nor would it seem to make any difference that the senior matai of the Faleafine family does not live in Ili'ili and therefore does not always know about village council meetings. If the land had been offered for registration in accordance with law, if there was no conflicting prior registration, if public notice was given prior to the survey at a meeting of village chiefs and subsequent notice posted at the courthouse and two public places in Ili'ili, and if the Faleafines never found out about it and did not object for sixty days, the registration statute would seem to deny them any further right to object. A.S.C.A. §§ 37.0101 et seq. The even broader contention made by plaintiff ---that a registration is inoperative and can be subsequently invalidated whenever the land registered can be shown to have been the property of some person other than the registrant- --would seem to deprive the statute of any force or effect whatever.

Accordingly, Leituala Malia Suapilimai and her family are permanently enjoined from interfering with the rights of the Faleafine family to use and occupy any of the land on the Faleafine survey. They are enjoined from using the land themselves except that they may use the umu so long as they do so in a way that does not disturb the Faleafines in their peaceful enjoyment of the remainder of the land.

Declaratory judgment shall also issue that the registration of land Niua by Malia L. Suapilimai and/or the Suapilimai family is of no legal force or effect.

It is so ordered.

**********

Development Bank v. Pritchard;


DEVELOPMENT BANK OF AMERICAN SAMOA and
AMERIKA SAMOA BANK, Plaintiffs

v.

RON PRITCHARD and JETTE PRITCHARD, Defendants

High Court of American Samoa
Trial Division

CA No. 118-87

March 17, 1988

__________

Contractual provision for "reasonable" attorney fees would not be construed to authorize a fee award greater than the amount of attorney fees actually incurred, even if the greater amount might have been reasonable.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge.

Counsel: For Plaintiff Development Bank, Steven H. Watson
For Plaintiff Amerika Samoa Bank, William Reardon [7ASR2d103]
For Defendant Ron Pritchard, Togiola T.A. Tulafono
For Defendant Jette Pritchard, Roy J.D. Hall, Jr.

On Motion to Set Attorney Fees:

In December 1987 we rendered judgment for the plaintiffs on a series of loans and guaranties executed in favor of the Pritchards and a pair of corporations of which the Pritchards were the principal officers. The plaintiffs now seek to recover attorney fees, as permitted by the documents embodying the loan agreements. Plaintiffs request ten percent of the amount of the judgment, which was nearly $300,000, and submit evidence that private attorneys retained to collect debts frequently charge their clients ten percent and in some cases far more. Defendants object to the proposed fee and contend that the Court should demand detailed accounts of the actual expenses incurred by plaintiffs for legal representation.

Plaintiffs contend that the contractual provision that defendants will be liable for a "reasonable" attorney fee means that they can recover whatever a reasonable fee would be, whether or not theyactually paid such a fee. There are precedents, particularly in the decisions of federal courts, for the proposition that attorney fee awards may be far in excess of fees actually incurred. Such decisions, however, generally involve construction of federal statutes under which lawyers perform the function of private attorneys general who "have been encouraged by the courts to tilt the lance for justice by the awarding of generous fees." Rosenfeld v. Black, 56 F.R.D. 604, 605 (S.D.N.Y. 1972). While we do not wish to discourage plaintiffs' attorneys or any others from tilting their lances in appropriate circumstances, the broad public purpose necessary to justify the "private attorney general" rationale is lacking in private debt collection cases. (Even if we did view the collection of unpaid debts as an activity to be sedulously fostered through fee awards in excess of actual fees paid, our authority to do so without specific statutory authority would be doubtful. See Alyeska Pipeline Services Co. v. Wilderness Society, 421 U.S. 240 (1975).) [7ASR2d104]

Our decision to award attorney fees to the plaintiffs was based on the written agreement of the parties. When a lender drafts a note obligating the borrower to pay "reasonable attorney fees" incurred by the lender in collecting the underlying debt, we must carefully scrutinize what a reasonable person would have understood that obligation to include. It is not unreasonable for a lender to condition a loan upon the borrower's promise to pay collection expenses, nor for the borrower to make that promise. It is fanciful, though, to imagine that a party would understand such an agreement as obliging him to pay "reasonable" fees far in excess of what it actually costs the creditor to collect the debt.

Although an award equaling ten percent of the judgment would be perfectly reasonable under certain circumstances indeed, in cases involving smaller principal amounts we have routinely awarded plaintiff Development Bank this percentage in the belief that it is roughly equivalent to the bank's actual costs of collection ---in this case it would give the bank a windfall. One of the factors a court should consider in awarding fair compensation is the nature of the relationship between attorney and client. Cf. ABA Model Code of Professional Responsibility, DR 2- 106(B). The Development Bank was represented in this case by its in-house counsel. The purpose of employing in-house counsel is to secure a constantly available legal representative, especially for routine work such as debt collection, at a lower cost than would be necessary if the employer contracted for legal work on a project-by-project basis. Because we conclude that the provision in the contract for "reasonable attorney fees" meant the reasonable costs to the bank of collecting rather than a fixed percentage of the amount of the judgment, we will permit the bank to recover what it spent. (This indeed is why we included in the original judgment an award of "actual attorney fees to be proved by affidavit.")

The attorney who served as in-house counsel testified that his salary and benefits during the year in which he was employed by the Development Bank amounted to about $50,000, and that he spent about 1500 billable hours during that year. The cost of his services to the bank, then, computed on an hourly basis, was about $33 per hour. Counsel testified that he and his predecessor spent a [7ASR2d105] combined total of 140 hours on this matter. The bank is therefore entitled to recover $4,620 for the fees paid to its attorneys while they served as in-house counsel. The attorneys for the Development Bank and for plaintiff Amerika Samoa Bank also testified that they charged $1,768 and $942 respectively for work done on the Pritchard matter as private attorneys, which amounts have been paid by the Development Bank. Finally, although no evidence on this question was presented, the Court will take judicial notice that the bank must have incurred collection costs other than those represented by the salary and benefits of the attorney and will take judicial notice that $1,000 would be an amount customarily and reasonably incurred for such expenses in a case such as the one before us. Plaintiffs may therefore recover as part of their judgment $8,330 in attorney fees.

It is so ordered.

**********

Continental Ins. Co. v. Workmen's Comp. Comm’n,


CONTINENTAL INSURANCE Co., Plaintiff

v.

WORKMEN'S COMPENSATION COMMISSIONER
OF AMERICAN SAMOA and LISE TILO, Defendants

High Court of American Samoa
Trial Division

CA No.141-87

March 17, 1988

__________

Territorial workmen's compensation statute, under which reviewing court could set aside decision of workmen's compensation commission only if it was "not in accordance with law," precluded court from reversing a finding of fact by the commission for which there was substantial evidence in the record of the commission's proceeding. A.S.C.A. § 32.0652.

[7ASR2d106] Court reviewing findings of fact by workmen's compensation would not reverse a finding unless a reasonable person could not have concluded as the commission did from the evidence in the record. A.S.C.A. § 32.0652.

Court would not reverse workmen's compensation commission finding that fatal heart attack "arose out of and in the course of'. decedent's employment, even though the heart attack had occurred at home rather than at work, where the commission record reflected that (1) decedent had a history of heart trouble but medical treatment had brought his condition under control in the months preceding his heart attack; (2) decedent had recently been transferred from his job as a night watchman to a highway maintenance job involving physical labor; (3) the punitive and involuntary transfer had created emotional pressures that testifying physician cited as a possible factor in the heart attack; (4) after the transfer decedent's symptoms had taken a drastic turn for the worse; and (5) the heart attack had occurred eleven days after decedent had begun work on the road crew. A.S.C.A. §§ 32.0520, 32.0652.

Before REES, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.
For Defendant American Samoa Government, Caroline B. Crenna,
Assistant Attorney General
For Defendant Tilo, Charles Ala'ilima

Mataitoa Tilo suffered a fatal heart attack in the spring of 1986. It appeared to the territorial Workmen's Compensation Commission that the heart attack had resulted from the strenuous conditions of Mataitoa's work in the Highway Division of the Department of Public Works, and the Commission awarded death benefits to his widow. Continental Insurance Company, the employer's insurer, wishes us to overturn this award. They argue that the decision ignored evidence that Tilo had long had an infirm heart and that his history of high blood pressure, obesity, and hypertension negated any inference that his heart attack, which occurred at home well after work hours, had anything to do with his employment. [7ASR2d107]

We can set aside the Commission's decision only if it was "not in accordance with law." A.S.C.A. § 32.0652. Since the law requires the payment of workmen's compensation for any injury "arising out of and in the course of employment, " A.S.C.A. § 32.0520, the only question before us is whether the Commission's finding is supported by substantial evidence. See Hartford Fire Insurance v. Workmen's Compensation Commission, 1 A.S.R.2d 57 (1981).

The record is replete with evidence that would justify one in concluding that Mataitoa Tilo's heart attack was triggered by the demands of his work. Medical treatment had brought his poor physical condition well under control in the months and weeks preceding his heart attack, during which time Tilo worked as a night watchman at the motor pool. He was then transferred to the highway maintenance outfit. His new assignment subjected him to vastly greater physical rigors than his former position had. Further, the circumstances of his transfer ---a punitive and involuntary one to a position of hard physical labor ---created emotional pressures that the testifying physician cited as another potential influence on the course of his infirmity. After his transfer, Mataitoa's condition took a drastic turn for the worse. He left work each day exhausted and plagued by extraordinary headaches. His heart attack occurred eleven days after he had begun work on the road crew.

Continental bases its appeal on evidence that Mataitoa's medical condition was so precarious that he would eventually have succumbed to a heart attack whatever his work circumstances. This suggests at most that Tilo's case could have been a close one for the Commission. We cannot say that a reasonable person examining the above facts could not conclude, as the Commission did, that the demands of Tilo's job hastened his death. The right to appeal a finding of the Commission ensures that no employer will be forced to pay compensation (and no injured employee denied it) by a Commission decision based on whimsy rather than substantial evidence. It does not entitle the losing party to a new trial before a new tribunal. As long as reasonable people could differ on the facts presented to the Commission, its decision will be upheld on appeal. [7ASR2d108]

The authorities cited in Continental's brief compel rather than contradict our conclusion. The cases do not suggest that in all situations similar to Tilo's the claims should be denied. They state instead that a Commission decision, whether for or against the claimant, should be affirmed on appeal if the evidence permitted the Commission to conclude as it did. See Roberts v. Industrial Commission, 509 P.2d 1285, 1286 (Colo. App. 1973). The evidence before the Commission in the claim of Mataitoa Tilo's widow amply supported its determination that his death arose "out of and in the course of his employment," and the decision is affirmed.

It is so ORDERED.

**********

Comm’r of Revenue; King v.


J.P. KING, Petitioner

v.

COMMISSIONER OF REVENUE, GOVERNMENT OF
AMERICAN SAMOA, Respondent

High Court of American Samoa
Trial Division

CA No.155-87

March 14, 1988

__________

Statute of limitations must be properly pled and proven.

Failure to plead the statute of limitations is a waiver of that defense. [7ASR2d91]

Under rules governing tax litigation, a party may amend pleadings by leave of court which shall be given freely when justice requires. Tax Court Rule 41.

In order to promote justice, court would exercise its discretion and give respondent leave to amend its answer to assert fraud on the part of petitioner and thus avoid petitioner's statute of limitations defense even though it had not yet been established that petition properly raised the issue.

Before KRUSE, Associate Justice, and OLO, Associate Judge.

Counsel: Petitioner J.P. King pro se
For Respondent, Martin Yerick, Assistant Attorney General

On Motion for Leave to Amend Answer:

Respondent American Samoa Government (hereafter "ASG",) and its tax office manager, move the Court for leave to amend their answer filed herein so as to add a paragraph alleging fraud on the part of petitioner with regard to the filing of his 1983 tax return. ASG advances the amendment under the misnomer "affirmative defense" obviously with the underlying sentiment of ensuring that fraud is put at issue to counter any limitations defenses which petitioner may have.

Petitioner excepts to the amendment for a number of reasons which the Court finds inconsequential, although distracting petitioner's focus from matters for which he should have regard.

This matter arose upon tax payer's pro se petition for redetermination of an ASG income tax deficiency determination for tax year 1983 and noticed upon petitioner by 90 day letter dated 8124187. The petition itself fails to plead the statute of limitations although as a defense, the statute of limitations must be properly pleaded as well as proven. Badway v. United States, 367 F.2d 22 (1st Cir. 1966). Failure to plead the statute of limitations as a defense constitutes a waiver of that defense. United States v. Gurley, 415 F.2d 144 (5th Cir. 1969). Further, under Tax Court Rule [7ASR2d92] 39, a party must set forth in his pleadings any matter constituting an avoidance or affirmative defense, including the statute of limitations. A mere denial thereof in a responsive pleading does not raise the issue. See Rule 39.

After the filing of ASG's answer, and apparently prior to the service thereof upon petitioner, the latter files a motion to dismiss or in the alternative, for declaratory judgment. The moving papers now contain a reference to a "3 year statute of limitations."

Prior to the hearing of the motion, ASG files a responsive argument in opposition as well as a cross motion to amend its answer as aforesaid. At the time set for hearing of petitioner's alternative motions, petitioner withdraws the same without, therefore, the Court considering the merits of the motions and the grounds there raised, including the limitations defense.

The issue is hardly before us, but the question irresistibly arises as to whether a limitations defense has been properly pleaded and therefore raised in accordance with the authorities above cited. If not, then the corollary, of course, is that the issue of fraud so as to prevent the operation of the statute of limitations would not be relevant.

Turning to the merits of ASG's motion to amend its answer, we look to the requirements of Tax Court Rule 41 which provides, inter alia, that, a party may amend his pleadings.... by leave of court.... and leave shall be given freely when justice so requires."

Leave is a matter for the Court's proper discretion and it appearing to the Court that leave would be promotive of justice, the motion is granted.

Petitioner may reply to and address the amended answer pursuant to the provisions of Tax Court Rule 37.

It is so ORDERED.

**********

 

Chan Kau v. Samasoni,


VILIAMU CHAN KAU, Plaintiff

v.

SIATIU SAMASONI and TALAMEU SAMASONI, Defendants

High Court of American Samoa
Trial Division

CA No. 91-87

January 27, 1988

___________

Where the parties to a putative contract of sale have made no definite commitments to each other, no contract is formed and thus relief on the contract is unavailable to either party.

Where bus owner allowed creditor to hold his bus as security for repayment of the debt, and the creditor subsequently operated the bus at a profit equal to or greater than the amount of the debt, the debt was discharged and the creditor's continued refusal to return the bus to its owner would amount to conversion.

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and OLO, Associate Judge.

Counsel: For Plaintiff, Asaua Fuimaono
For Defendants, Togiola T.A. Tulafono

Plaintiff, Viliamu Chan Kau, offered to sell his aiga bus (1) to his friend, the defendant Siatiu Samasoni. At the time the offer was made, sometime in February, 1986, the bus had been garaged for repairs. At plaintiff's further insistence, defendant withdrew $600.00 from his savings bank account and handed the same to plaintiff, who defendant says was in need of cash at the time. As far as we can gather, the understanding between the [7ASR2d22] parties at this point in time was that defendant would take possession of the bus when the same left the garage. About a week later, defendant, at plaintiff's further request for money, gave plaintiff $2,000.00. And yet another week afterwards, defendant gave plaintiff another $150.00. Defendant by now had advanced plaintiff $2,750.00 while the bus was still being repaired. The overall price of the bus was to be $8,500.00 and we find that the parties' intention was that the balance (less the deposit) would be paid off in installments while defendant operated the bus.

Plaintiff took delivery of the bus after repairs were completed and when defendant noticed the bus parked by the plaintiff's home, he went to see the plaintiff. In the ensuing conversation, plaintiff advised defendant that a certain church organization had offered to purchase the bus with payment to be made in full. Plaintiff proposed to defendant to allow the bus to be sold to the church, and from the proceeds thereof, the defendant's money would be refunded.

The next that defendant knew of the bus was that the same was garaged again for further repairs. It was shortly returned to plaintiff, whereupon defendant consulted plaintiff for the expected return of his money. Plaintiff did not have defendant's money, whereupon the latter took the bus with plaintiff's acquiescence.

Defendant's theory at this point in time the bus as was that he was taking possession of security for the return of his money. It was his understanding that the church deal had fallen through.

Plaintiff on the other hand states that he had given defendant the option of maintaining their previous agreement of defendant purchasing the bus -and thereby taking possession immediately -or that defendant could wait until the sale to the church had come through and then defendant's money could be refunded.

Defendant's taking possession of the vehicle entailed his operating the bus for carriage. Some two weeks later, defendant persuaded plaintiff to sign over the ownership papers. Plaintiff said he was reluctant to do this because of the outstanding purchase money, but was persuaded by defendant who [7ASR2d23] insisted in having the bus in his name for insurance purposes and thereby eliminating plaintiff's exposure to liability.

While the bus was being operated by defendant, all that plaintiff subsequently received was $390.00. Plaintiff files suit.

Among defendants' counterclaims is that the bus was continuously breaking down and in his calculation of receipts against expenses while the bus was operable, the bus had netted only $1,020.00 for the some 36 weeks he ran the bus. The bus while still in his possession, now needs repairs. The radiator had fallen off its rusted mounting shortly before Christmas, and since that time, the bus has been parked.

The Court is asked to adjust rights and obligations accordingly between the parties who have both attempted to advance various contractual theories in the case. In order to accommodate these theories, the Court would be required to undertake some rather fanciful and imaginative findings of common intents to reconstruct a resulting agreement. To the contrary we find as follows:

CONCLUSIONS

(1) The bus belongs to plaintiff. Plaintiff received from defendant the total sum of $3,140.00 anticipating the conclusion of a sale.

(2) A sale did not go through as anticipated. With intervening factors neither party had any definite commitments or intents regarding the sale arrangement originally anticipated.

(3) Defendant's removal of plaintiff's bus was with the intention to recoup his losses, not to undertake to purchase the bus; it was also with the plaintiff's acquiescence as well as his appreciation that he owed defendant money.

(4) Defendant worked plaintiff's bus and derived revenue therefrom for some 36 weeks.

(5) Defendant's use of the bus, as we gather from regular gasoline receipts admitted into evidence as well as the fare schedule from Fagatogo [7ASR2d24] to Tula, was more than adequate to offset plaintiff's monetary indebtedness.

(6) Plaintiff's demands for the return of his bus negatives past acquiescence and any further attempts by defendant to retain possession of the bus would be tantamount to conversion.

On the foregoing findings, judgment will enter accordingly and it is So ORDERED.

**********

1. 1980 Ford CP-622.

American Samoa Gov’t v. Satele,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TUPUA VILIAMU SATELE, Defendant

High Court of American Samoa
Trial Division

CR No. 8-81

June 21, 1988

__________

Court that ordered defendant released from mental institution, to which he had been committed after being found not guilty of first degree murder by reason of insanity, did not act unconstitutionally in imposing conditions (1) that he reside with his wife in Los Angeles unless granted permission by the court to reside elsewhere; (2) that he refrain from use of alcohol; and (3) that he consult with a physician periodically.

Territorial government is bound by court orders in proceedings to which it is a party and should not issue legal opinions that counsel disobedience to such orders.

Before REES, Chief Justice.

Counsel: Defendant Viliamu Satele pro se

On "Request for Confirmation of Legal Opinions by Governor's Office":

In 1981 the defendant in this case was tried for two counts of Murder in the First Degree. At the conclusion of the trial the Court found that all of the elements of first degree murder had been proved beyond a reasonable doubt. The defense had presented psychiatric testimony, however, that the defendant had committed the crime while suffering from a brain dysfunction. On the basis of this testimony the Court found the defendant Not Guilty by Reason of Insanity. [7ASR2d155]

On June 9, 1981, the Court ordered that the defendant be committed to the Closed Intensive Security Unit of the Hawaii State Hospital. Subsequently the defendant requested a hearing for the purpose of demonstrating that he had regained his sanity, was no longer a threat to himself or others, and should therefore be released. At this hearing the defendant presented a psychiatrist and a neuropsychologist from Hawaii who testified that they could not detect any significant symptoms of a brain dysfunction. After considering this testimony along with other evidence and arguments at a series of three hearings held in late 1982, the Court found that further institutional confinement was no longer necessary. The Court imposed, however, the conditions that defendant reside with his wife in Los Angeles, California unless granted permission of the Court to reside elsewhere; that he "refrain from the use of alcohol; and that he consult with a physician periodically concerning his mental impairment.

That was the last the Court heard of the case until today, when we received a surprising communication from the defendant. This communication includes a copy of a letter from Lyle Richmond, Legal Counsel to the Governor, which reads in pertinent part as follows:

While the High Court of American Samoa imposed a condition
prohibiting you from returning to American Samoa for a period
of 10 years, it is the Attorney General's .opinion that this
restriction is unconstitutional and you are free to travel as you wish.

The defendant asks that the Court provide "confirmation of legal opinions by Governor's office or a judicial adjudgement of my case."

The Court cannot provide the requested confirmation. In the first place, insofar as we are able to reconstruct the evidence that was before the Court in 1982 the conditions imposed at that time were not only constitutional but eminently reasonable. As the Court correctly observed, it was not conclusively bound by "[t]he fact that certain medical witnesses are presently unable to diagnose" a dysfunction, but had an obligation to make its own judgment based on all the evidence at its disposal. This would have [7ASR2d156] included the medical testimony adduced at trial as well as other evidence to the effect that life in Samoa had subjected the defendant to certain "pressures and conflicts" which left him unable to resist the urge to kill people. The Court's finding that the defendant was no longer a threat to himself or others was conditional on his continued abstinence from alcohol and on his remaining in a particular environment. (Indeed, the report of the tests that were done on defendant in Hawaii shortly before the hearing, which was apparently at least part of the basis for the psychiatrist's testimony that there were no currently observable symptoms of brain dysfunction, concluded that defendant's "neuropsychological functions [were] generally within the normal range" but that the tests remained "consistent with earlier identification of broad frontal lobe difficulties." The report adds that "even moderate use of alcohol or mind-altering substances would be likely to produce a fairly rapid deterioration in his neuropsychological functioning to the level of functioning seen in previous testing a year ago, with the important implications regarding his judgement and decision-making abilities.")

Aside from whether the Court's decision in 1982 was correct on the merits, however, it is astonishing and disturbing that the American Samoa Government should feel free to counsel disobedience to that decision. The government, like everyone else, is bound by court orders in proceedings to which it is a party. Courts sometimes make mistakes; a party who believes the court made a mistake in his case has a variety of post-judgment remedies at his disposal, but outright disobedience to the court's orders is not among them.

In this case the Court's 1982 order explicitly provides for its own modification upon a showing that the conditions are no longer necessary for the protection of the public. (It is unclear where the Attorney General's office got the idea that the order was limited in duration to ten years.) Until such a showing is made, the defendant is prohibited from returning to Samoa and the government is bound to enforce this restriction.

**********

American Samoa Gov’t; Lutu v.


MERI-MINE M. LUTU, a minor, by and through
her Guardians Ad Litem, SMITTY S. SU'ESU'E
LUTU and MUAITOFIGA F. LUTU, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and LILIA
TAUGAVAU, Defendants

High Court of American Samoa
Trial Division

CA No. 159-87

February 23, 1988

__________

Where territorial statutes differed in language and structure from federal statutes on same subject matter, territorial court should not disregard clear language of territorial statutes in reliance on judicial decisions construing federal statutes. [7ASR2d62]

Where statute provides that minor has one year after termination of minority to commence any action regardless of any otherwise applicable limitation period, an action brought within this one year period is not barred by two year statute of limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204.

Statute providing that judgment against government precludes later claim against government employee based on same event does not bar suit against employee prior to judgment against government. A.S.C.A. § 43.1207.

Statute immunizing government employees from personal liability for wrongful acts committed within the scope of their employment bars suit against employee only after it has been established that the wrongful conduct underlying the claim was committed within the scope of employment. A.S.C.A. § 43.1211(a).

Before REES, Chief Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, John Ward
For Defendants, Martin Yerick, Assistant Attorney General

On Motion to Dismiss:

In 1984 Meri-Mine Lutu was struck by what we assume for the purposes of this motion was a school bus driven by an employee of the American Samoa Government. Almost three years later Miss Lutu, a minor, filed a claim with the Attorney General through her parents. The Attorney General denied the claim, citing the statutory two-year limitation on commencing a tort action against the government. Miss Lutu then brought this action against the Government and the bus driver.

Reiterating its view that the action is too late, the Government has moved to dismiss. In the alternative the Government urges that the bus driver is not a proper party defendant. [7ASR2d63]

I. The Statute of Limitations

Defendants argue that the territorial Government Tort Liability Act, A.S.C.A. §§ 43.1201 et seq. (hereinafter "GTLA") strictly confines the limitation period on tort actions against the Government to two years. (1)

Plaintiffs rely on another section of the Code which provides in pertinent part that a minor "shall have 1 year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitation period." A.S.C.A. § 43.0126 (emphasis added). Since Meri-Mine is still a minor, they argue, the statute of limitations has not even begun to run. (2) Defendants contend, however, that this section does not apply to tort claims against the Government. They rely principally on federal cases holding that a provision of the United States Code affording [7ASR2d64] similar protection to minors (3) does not toll the two-year statute of limitations applicable to tort claims against the federal government. (4) Since the GTLA was modeled on the Federal Tort Claims Act, and since the federal decisions uniformly regard the federal two-year limitation as absolute and unaffected by the provision tolling limitation periods during disability, the government contends that the American Samoa statutes should be similarly interpreted.

It is true that the federal courts require a tort action against the United States to be brought within two years even if the claimant is under a legal disability such as minority. See, e.g., Simon v. United States, 244 F.2d 703 (5th Cir. 1957); Pittman v. United States, 341 F.2d 739 (9th Cir. 1965); United States v. Glenn, 231 F.2d 884 (9th Cir. 1956). The cases generally rely on the principle that a sovereign government need not subject itself to suit at all. When it acts to waive its immunity and consents to be sued in tort, and when the statute creating the right to sue clearly imposes a time limit, then a party advancing a claim under that statute must comply [7ASR2d65] strictly with its terms, including the time limit. See Simon, supra, 244 F.2d at 704-06. The courts regard it as clear from the language and history of the federal provisions that Congress was especially wary of having to defend stale tort claims. See Pittman, supra, 341 F.2d at 741-42. Therefore the two-year limitation on tort claims in 28 U.S.C. § 2401(b) must be construed as an exception to the rule provided by 28 U.S.C. § 2401(a) tolling the limitation period in the case of a minor plaintiff. Pittman, 341 F.2d at 740-41; Simon, 244 F.2d at 704-05.

The Glenn court reached the same conclusion a little differently. Aside from the general tendency of sovereign governments not to issue broad waivers of immunity, it found no particular evidence of congressional intent one way or the other on the question whether the limitation on tort claims should run against a legally disabled claimant. The court noted that § 2401(a), creating a six-year general statute of limitations for claims against the government and suspending it for legally disabled persons, and § 2401(b), creating a two-year limitation on tort claims and containing no tolling words to cover disabilities, were incorporated into the United States Code from two earlier statutes. The statute that was the source for § 2401(a) included a disabilities exception; the source of § 2401(b) did not. As enacted, the two subsections of § 2401 provide two different rules: a general rule for non-tort suits against the government and a special and different rule for tort claims. In the absence of evidence in the language or history of the statute that the disability exception of § 2401(a) was meant to apply also to § 2401(b), the former must be read as having nothing to do with the latter. Glenn, 231 F.2d at 886-87.

Neither the reasoning of Simon and Pittman nor that of Glenn suggests a similar result in American Samoa. Indeed, the best inference that can be drawn from the structure and relationship of the two American Samoa statutes is exactly the opposite of the inference drawn by the Glenn court from the structure and relationship of the two federal provisions. The federal law says to those who might wish to sue the federal government:

(1) You have six years to bring your action, unless you are a
minor or [7ASR2d66] otherwise legally disabled in which
case you have three years after the disability ends.

(2) If the action is a tort action you have only two years.

See 28 U.S.C. § 2401(a), reprinted in note 3 supra; id. § 2401(b), reprinted in pertinent part in note 4 supra. The American Samoa Code, on the other hand, says the following:

(1) You have two years to bring a tort claim.

(2) If you are a minor or insane you have 1 year after the
disability ends to bring gny action, regardless of how long
you would have if you were not so disabled.

(3) You have one year to bring a tort claim against the government.

See A.S.C.A. §§ 43.0120, 43.0126, 43.1204.

The American Samoa statutes. in other words. are importantly different from the federal provisions in their language, their structure, and their apparent relation to one another. The federal statutes of limitation comprise two subsections of a single section, 28 U.S.C. § 2401. The two subsections appear to state different rules for different kinds of cases. The first subsection states a rule and immediately announces an exception for minors; the second subsection states a somewhat different rule and announces no such exception. This strongly implies that the exception applies to the former but not to the latter. See Glenn, supra, 231 F.2d at 886. In contrast, the exception for minors in American Samoa does not appear to have been intended only as a proviso or caveat to some particular statute of limitations. It is contained in a separate section of the Code and expressly announces its application to "any" action, regardless of "any" statute of limitations that would otherwise apply. A.S.C.A. § 43.0126.

In light of the differences in language and structure between the federal and territorial statutes, it would be most inappropriate to [7ASR2d67] disregard the clear language of the latter on the basis of evidence (or judicial assumptions) about the intentions of Congress in enacting the former. The Simon and Pittman courts found that the dominant intention of Congress (or, more accurately, of the various Congresses that enacted and revised the various parts of 28 U.S.C. § 2401) was to ensure that the federal government would not have to defend stale claims. While the Fono seems to have shared this concern when it enacted the one-year limitation in the GTLA, it is not at all clear that this concern superseded all others, If anything, the strongest statement of legislative purpose that emerges from a study of the territorial statutes is the special solicitude for minors and insane persons reflected in the sweeping language of A.S.C.A. § 43.0126.

In any case, unlike a court construing the federal statutes of limitations we are not faced with the need to resolve a textual ambiguity or conflict by designating one of several competing legislative purposes as the dominant one, The American Samoa statutes are not ambiguous: the statute relied on by the government clearly establishes a one-year statute of limitations, and the statute relied on by the plaintiffs just as clearly makes an exception to "any" statute of limitations, No conflict between the statutes is visible to the naked eye: one states a rule, the other an exception to all such rules, The effect of introducing evidence that there was at least one statute of limitations to which the Fono did not really mean the exception for minors to apply--- or that when the Fono enacted the GTLA it implicitly changed its mind about the general exception for minors, and would have enacted an explicit exception to the exception if anyone had thought about it ---would be to supply ambiguity rather than to resolve it.

Reasonable people can differ on how a court should decide a case in which clear evidence of legislative intent clashes with what would otherwise be the apparent meaning of the text. This is not such a case: we are aware of no particular evidence about what the Fono actually did intend when it enacted any of the statutes at issue in this case. Rather, we are asked to deduce such an intention from a chain of assumptions and inferences to the effect that in enacting the various statutes at issue in this case the Fono [7ASR2d68] intended (or, to be precise, "dominantly" intended; or, to be more precise, would have "dominantly" intended if anyone had adverted to the question) what the federal courts have decided Congress must have "dominantly" intended when it enacted a somewhat different set of statutes. We think it more consistent with the respect due a co-ordinate branch of government to assume that the Fono really did mean to exempt minors from "any" statute of limitations; and that it would have known how to amend this rule if it had meant to do so when it enacted the GTLA.

II. The Bus Driver

The government has also moved the Court to strike Silia Taugavau, the bus driver, as a party defendant. The motion is based upon two sections of the GTLA which together, according to the government, prohibit suit against an individual ASG employee when the claimant is proceeding under the GTLA. Two earlier decisions of this Court do imply that an individual employee can never be a defendant in a GTLA lawsuit in which the Government is also a defendant. Aga v. American Samoa Government, 3 A.S.R.2d 130 (1986); Moananu v. American Samoa Government, CA No.133-85 (Decision and Order on Motion to Dismiss, November 12, 1986) (obiter dictum).

We are persuaded, however, that these decisions incorrectly apply the GTLA sections at issue. Rather, we believe the Court's contrary holding in Tevaseu v. American Samoa Government, 5 A.S.R.2d 10 (CA No.88-87, July 8, 1987), correctly construed these two sections, which provide as follows:

The judgment in an action, or the payment of a claim by
the Attorney General, under this chapter shall constitute
a complete bar to any action by the claimant, by reason
of the same subject matter, against the employee of the
government whose act or omission gave rise to the claim.

A.S.C.A § 43.1207.

(a) The remedy by suit against the government as provided
by this chapter for damage to or loss of property, or personal
injury or death caused by the negligent or [7ASR2d69]
wrongful act or omission of any employee of the government
while acting within the scope of his office or employment,
shall hereafter be exclusive of any other civil action or
proceeding by reason of the same subject matter against the
employee whose act or omission gave rise to the claim, or
his estate.

A.S.C.A. § 43.1211(a).

Under A.S.C.A. § 43.1207, a judgment against the ASG precludes a later claim against the responsible employee based on the same transaction. This merely prohibits a claimant from recovering twice, not from suing the employee in the first place. See Henderson v. Bluemink, 511 F.2d 399, 404 (D.C. Cir. 1974) (construing an identical federal provision). With A.S.C.A. § 43.1211(a) the Fono has cloaked ASG employees with full immunity from personal liability for the consequences of wrongful acts committed within the scope of their employment. The government is therefore correct to argue that an individual government employee cannot remain a defendant once it is established that the wrongful conduct underlying the claim was committed within the scope of his employment. Unless and until that is established, however, suit against the employee is fully available and nothing in § 43.1211(a) suggests otherwise. (In fact, § 43.1211(b) requires the Attorney General to represent the employee under these circumstances.)

The government may wish to show that Silia Taugavau was acting without the scope of his employment when the accident with Ms. Lutu took place. In that case, Taugavau would remain an appropriate defendant. Alternatively, the government may be willing to stipulate that Taugavau was acting within the scope of his employment. Then and only then should he be stricken as a defendant.

The government's motion is denied.

**********

1. A.S.C.A. § 43.1204, the section of the GTLA relied upon by the government, provides:

A tort claim against the government shall be forever barred unless
an action on it is begun within 2 years after the claim accrues.

2. Since a minor is no longer prohibited from bringing suit once a guardian ad litem has been appointed for him, and since Meri-Mine's parents were appointed her guardians ad litem on December 18, 1987, it would seem that the statute of limitations in this case began to run on that date at the very latest. Since the guardians filed suit on the day they were appointed, we need not reach the question whether a claim by a minor for whom a guardian had been appointed would be barred if it were brought more than one year after the appointment.

3. U.S.C. § 2401(a) provides:

Every civil action commenced against the United States shall be
barred unless the complaint is filed within six years after the right
of action first accrues. The action of any person under legal disability
or beyond the seas at the time the claim accrues may be commenced
within three years after the disability ceases.

4. The statute of limitations for tort claims against the federal government
is contained in U.S.C. § 2401(b), which provides in pertinent part:

A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within
two years after such claim accrues.