Epa vaapuu, Appellant, V. American samoa government, Appellee
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- JAMES L. McGUIRE and the TAFUNA RESIDENTS ASSOCIATION, Petitioners/Appellants, v. ZONING BOARD, GOVERNMENT OF AMERICAN SAMOA, Respondent/Appellee.
- Discussion A. Exhaustion of Administrative Remedies [1-2]
[16] We also reject Saunoa’s argument that because the trial court invoked the Rule of Necessity in denying the motion for new trial, that the trial court was somehow acknowledging that some degree of partiality was present in the panel of associate judges. As discussed in United States v. Will, 449 U.S. 200, 213-216 (1980), this ancient rule of common law requires the adjudication of a controversy by a judge who is, by statute, canon, or other direct interest, disqualified from hearing that matter when no provision is made for calling in another judge or no other judge can take the disqualified judge’s place. The basis for the rule is that unless a judge, even an interested one, can address and resolve the case, the litigants may be deprived of their constitutional right to seek judicial resolution of their controversy. The trial court did not invoke this common law rule to justify the associate judges’ hearing the retrial of this controversy even though they were disqualified. Rather, the trial court held that even if there was an appearance of partiality, there were no other available associate judges to hear the case. Order Denying Motion For Reconsideration at 3 (May 19, 1997) Because we have determined that the associate judges who participated in the retrial were not, ipso facto, disqualified from sitting because of their participation in the first trial, and that the individual judges challenged by Saunoa were not otherwise subject to recusal because of allegations of tenuous or remote family ties to the litigants, we need not reach the issue of whether the Rule of Necessity applies to the facts of this case. D. Trial Court’s Findings of Fact [17] Our review of this issue is governed by statute, which prohibits this court from setting aside findings of fact by the land and titles division unless such findings are “clearly erroneous.” A.S.C.A. § 43.0801(b). This court may determine that the trial court’s findings are clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsom Co., 333 U.S 364 (1948). [18-19] In matai title controversies, the trial court’s decision as to the best candidate is determined by its findings relative to the four categories of statutory criteria prescribed by statute. A.S.C.A. § 1.0409. Not only did the Legislature prescribe what the trial court was to determine, but also the priority of these considerations. Further, by prohibiting any justice of the High Court from participating in the ultimate decision of the four-member associate judge panel unless to break a tie, the Legislature has strongly indicated that in the absence of an uncontested family consensus as to who should succeed to a vacant matai title, the next best selectors of the successor are associate judges, who historically have been ranking titleholders within their own extended families. To insure that culturally experienced jurists also fairly participate at the appellate level, the Legislature has further provided that associate judges sitting in the appellate division on appeals from the land and titles division have equal decision-making power with the justices assigned to that case. A.S.C.A. § 3.0221. [20] The statutory dispute resolution scheme adopted by the Legislature for deciding matai title controversies is unique, both in the composition of the judicial panel and the criteria of title succession which such a panel must assess and determine. The carefully developed statutory plan indicates clear legislative intent to insulate such trials from the strict application of arguably inapposite judicial rules, practices, and procedures applicable to nearly all other civil controversies within the jurisdiction of the High Court. [21] Candidates are guaranteed by statute a panel of judges neutral in act and appearance and an assessment and determination of the statutorily established and prioritized criteria of consideration for selecting the successor to the vacant title. It is worth stressing, however, that this selection process is a statutory alternative to the preferred historical selection process in which the extended family meets and, by consensus, selects a successor based upon that family’s particular traditions and practices. [22] In order to preserve the broad discretion afforded by statute to the associate judges to determine the best qualified successor to a matai title, this court must resist the imposition of broad invariable rules of preference for certain individual attributes of the candidates. For example, regardless of some matai title controversies having been resolved in favor of the candidate possessing the higher degree of formal education or the greatest disposable income or personal wealth, such cases cannot be interpreted, as Saunoa urges, to invariably require the land and titles division to hold that such attributes always outweigh the accomplishments of other candidates. To establish such broad rules of law would at once frustrate the broad grant of discretion given by the Legislature to the trial court in matai title cases and unduly encroach upon the specific, constitutional powers of the Legislature to preserve and protect the Samoan way of life. By way of example, Saunoa argues that Suafa`i’s use of an unregistered matai title must necessarily be fatal to any positive evaluation on the criterion of his “forcefulness, character, personality and knowledge of Samoan customs” under A.S.C.A. § 1.0409(a)(3). Saunoa claims that Suafa`i used an unregistered matai title in violation of A.S.C.A. § 1.0414 and that this “crime” allowed Suafa`i to acquire his knowledge of Samoan customs. [23] A.S.C.A. § 1.0414, in pertinent part, reads as follows: A person who uses any matai title or permits the use of any matai title in his behalf before the same has been registered in accordance with the provisions of this chapter . . . shall be sentenced as for a class B misdemeanor. This statute prohibits at least three types of conduct with respect to matai titles. It prohibits the actual or permitted use by individuals of matai titles that have not been duly registered and recorded in the matai title registry prior to January 1, 1969 with the territorial registrar. A.S.C.A. § 1.0401. Also prohibited is the actual or permitted use of any matai title appearing in the registry by an individual who has not fully complied with the statutes governing succession to a vacant, registered matai title, or the actual or permitted use of a registered matai title by an individual who is not the present legal titleholder. The record contains sparse mention of Suafa`i’s alleged criminal activity in the use of an unregistered matai title. See R.T. p. 182, lines 14-20. Suafa`i did not contest in his brief or during oral arguments that the talking chief title “Moasili” was conferred upon him by the previous Faumuina titleholder or that the title is not recorded in the matai title registry. Suafa`i contends, however, that it is a common practice for senior matais, and especially paramount chiefs, to create and confer new matai titles upon members of their families for the limited purpose of serving the higher-ranking matai of the family. Because of this practice, Suafa`i argues that the statutory prohibitions against the illegal use of a matai title should be narrowly construed to apply only to the actual or permitted use of a matai title which is listed in the matai title registry by a person when the title is vacant or legally held by another. As discussed above, the Legislature clearly prohibited the actual or permitted use of unregistered matai titles when enacting the broad language of A.S.C.A. § 1.0414, to halt the proliferation of new matai titles because that practice would “tend to deminish (sic) the dignity and degrade the matai titles now existing.” Mailo v. Fuimaono, 4 A.S.R. 757, 761-62 (Trial Div. 1967). Current practices to the contrary notwithstanding, the fact that a paramount chief breaks the law by bestowing an unregistered matai title within his family does not legally excuse the person using that prohibited title from the statute’s application. We are not presented with any particulars with respect to the creation or use of the unregistered matai title “Moasili.” Both parties concede, however, that Suafa`i was never charged or convicted for using this title under A.S.C.A. § 1.0414. Indeed, Suafa`i, when asked if he knew that for 20 years he had violated the law responded, “Nobody has told me that.” R.T., p 182, lines 18-20. Saunoa contends that it was clearly erroneous for the trial court to rank Suafa`i ahead of the other candidates in terms of character and knowledge of Samoan customs because of Suafa`i’s alleged illegal use of the unregistered matai title “Moasili.” Saunoa cites several cases to buttress his assertion that title candidates who have used unregistered matai titles have invariably lost in matai title controversies. We have carefully reviewed those cases and find that although the losing candidates in each cited case had indeed used an unregistered or vacant title, the court found that the losing candidates had also been convicted of committing additional and separate crimes ranging from larceny (Tooto`o v. Faea, 2 A.S.R. 94 (Trial Div. 1940), Fa`agau v. Tulei, 4 A.S.R. 490 (Trial Div. 1964)) to adultery (Tuinei v. Ieliko, 2 A.S.R. 117 (Trial Div. 1964)), and evidenced other personal shortcomings indicating character flaws. In the instant case, Saunoa had ample opportunity at trial to demonstrate his present contention that Suafa`i’s prohibited conduct indicated a character flaw sufficiently significant to find him unfit to assume the contested matai title. Upon reviewing the evidence as a whole on this matter, however, we do not find the trial court’s findings of fact on the issue of Suafa`i’s character or knowledge of Samoan custom to be clearly erroneous. [24] Although we agree with Saunoa that a prior criminal conviction of a crime, especially an infamous crime or one involving moral turpitude, would likely prove fatal to any candidate’s favorable assessment as to character, prior statutes which automatically disqualified certain convicted felons from registering matai titles have been repealed and not reenacted. See Akemo v. Mulu, 2 A.S.R. 89 (Trial Div. 1940). We must construe this statutory history as reflecting the Legislature’s intent to allow the panel of associate judges in matai title cases broad discretion to weigh all attributes—both positive and negative—in evaluating each candidate’s character. We do not find that the trial court exceeded the limits of that discretion in its evaluation of Suafa`i’s character in this matter. We have also reviewed Saunoa’s allegations of error in the trial court’s evaluation of clan support. The trial court found that Suafa`i’s residence in the village, coupled with active tautua (service) in meeting the family’s commitments, allowed him to prevail within this single-clan family. Despite Saunoa’s spirited arguments to the contrary, we do not find these findings of fact to be clearly erroneous when reviewing the record as a whole. Conclusion Based upon the foregoing, we find no error of law or fact in the trial court’s decision requiring a new trial. The decision of the trial court is therefore affirmed. It is so ordered. ********** JAMES L. McGUIRE and the TAFUNA RESIDENTS ASSOCIATION, Petitioners/Appellants, v. ZONING BOARD, GOVERNMENT OF AMERICAN SAMOA, Respondent/Appellee. High Court of American Samoa Appellate Division AP No. 19-98 May 14, 1999 [1] In order to obtain judicial review of an administrative decision, a potential plaintiff must exhaust all administrative remedies within the agency. [2] The administrative remedies available to an individual aggrieved by a decision of the Zoning Board consist of an initial hearing and a procedure for reconsideration of the Board’s decision. [3] The requirement that a litigant exhaust his or her administrative remedies before bringing suit is an intensely practical one which may be judicially excused when the purposes of the requirement would not be served by requiring adherence. [4] Where administrative remedies had been exhausted by entity’s representative, not formally appearing on behalf of entity but appearing for himself, entity was nonetheless entitled to judicial review, as purposes behind exhaustion requirement were met—case was not premature, hearing and reconsideration had taken place, and Board had ample opportunity to review and reverse its decision. [5] To determine whether a given individual or organization has standing to seek judicial review of a final administrative decision, the petitioner must demonstrate that he, she or it has (a) suffered an “injury in fact” and (b) is arguably within the statute’s “zone of interests.” [6] In order to satisfy the “injury in fact” requirement for purposes of standing, a plaintiff need only be able to identify an injury and demonstrate that he or she is actually among the injured. [7] Where petition alleged that variance would result in drain on water supply and constitute threat to pedestrian traffic, such allegations were sufficient to satisfy the “injury in fact” requirement for standing purposes. [8] Zoning statutes and regulations are designed to protect the rights of neighboring land owners. [9] Where plaintiffs consisted of a resident, and association of residents, of the neighborhood for which a variance was sought, appellants’ alleged injuries fell squarely within the zone of interests for which the zoning statutes were sought to protect. Before KRUSE, Chief Justice, RICHMOND, Associate Justice, TUA`OLO, Chief Associate Judge, and ATIULAGI, Associate Judge. Counsel: For Appellants, Reginald E. Gates For Appellee, Marie A. Lafaele, Assistant Attorney General ORDER DENYING MOTION TO DISMISS AND ALTERNATIVE MOTION FOR PARTIAL SUMMARY JUDGMENT In this action, appellants James L. McGuire (“McGuire”) and the Tafuna Residents Association (“TRA”) seek judicial review of a variance granted by appellee Zoning Board (“the Board”), an administrative branch of the American Samoa Government. On December 1, 1998, the Board filed a motion to dismiss and alternative motion for partial summary judgment, alleging that 1) TRA had failed to exhaust administrative remedies and 2) both McGuire and TRA lacked standing to challenge the Board’s ruling. A hearing was held in this matter on February 9, 1999, with all counsel present. Facts On March 5, 1998, Aotearoa Hong submitted to the Board a zoning variance application for the construction of a single-story, 7,200-square foot commercial warehouse in Tafuna. See Document No. 291. A hearing was held on the application on April 9, 1998, at which McGuire appeared and submitted a letter in opposition to the variance. See Document Nos. 22, 23 and 25. The Board held a “Special Hearing” on May 22, 1998, and rendered its decision granting the variance that same day. See Document Nos. 12 and 13. The decision was received by McGuire a week later, and on June 8, 1998, he made an official written request for reconsideration.2 See Document No. 9. The initial reconsideration hearing was scheduled for July 21, 1998, but discussion of the Aotearoa variance was postponed for lack of a quorum. See Document No. 7. McGuire submitted a letter on July 30, 1998, requesting a written copy of any decision, which he signed both in his personal capacity as “Resident in Tafuna” and as “Representative of Tafuna Residents Assoc.” See Document No. 5. A quorum was present at the subsequent meetings of August 3 and August 19, 1998, and the Board heard the motion for reconsideration. See Document No. 4. The minutes of those meetings again reflect TRA’s participation, with McGuire present as its representative. Id. The Aotearoa variance was upheld by unanimous vote at the August 19 meeting, and written notice of that decision was provided by letter of September 2, 1999. See Document Nos. 1 and 4. In explaining its decision, the Board ultimately ruled that the warehouse “would not create an adverse impact.” See Document No. 1. This suit, seeking judicial review of the final agency decision pursuant to A.S.C.A. § 4.1040(a), followed. Discussion A. Exhaustion of Administrative Remedies [1-2] A.S.C.A. § 4.1040(a) explicitly restricts the right of judicial review to those individuals who have “exhausted all administrative remedies available within an agency.” Among the remedies available to an individual aggrieved by a decision of the Zoning Board are an initial hearing and a procedure for reconsideration, which McGuire clearly invoked by his letter of June 8, 1998. See Document No. 9. Any dismissal for failure to exhaust administrative remedies, therefore, shall only apply to TRA. In reviewing the record, we do find that TRA neglected to participate in the initial April 9 hearing or to join in McGuire’s June 8 motion for reconsideration. The hearing minutes reference McGuire only as “another public member,” and McGuire’s letter requesting reconsideration appears to have been signed by him only his individual capacity, namely as “Real Estate Appraiser” and “Residing in Tafuna.” See Document Nos. 9, 22 and 23.3 On the other hand, as noted above, TRA did join McGuire’s letter of July 30, 1998 and participated in the reconsideration hearing itself. See Document Nos. 4 and 5. Although TRA technically may not have exhausted its administrative remedies due to its failure to appear at the initial hearing—and clearly could not itself have moved for reconsideration for this reason—its subsequent participation persuades the court to allow it to remain as a party to this case. [3] As a general rule, the exhaustion requirement is an “intensely practical” doctrine which may be judicially excused when “the purposes of the requirement would not be served by requiring [rigid adherence]” to the rule. Bowen v. New York, 476 U.S. 467 (1986). See generally 2 AM. JUR. 2D Administrative Law § 511—Particular circumstances under which exhaustion may not be required (1994 & Supp. 1998). The purposes of the exhaustion requirement have been identified by this court on prior occasion: [T]he doctrine . . . (1) insures against premature interruption of the administrative process; (2) allow[s] the agency to develop the necessary factual background on which to base a decision; (3) allow[s] exercise of agency expertise in its area; (4) provide[s] for a more efficient process; and (5) protect[s] the administrative agency’s autonomy by allowing it to correct its own errors and insuring that individuals [are] not encouraged to ignore its procedures by resorting to the courts. McGuire v. Zoning Board, 26 A.S.R.2d 59, 61 (Appellate Div. 1994), quoting South Hollywood Hills Citizens v. King County, 677 P.2d 114, 118 (Wash. 1984) (citing McKart v. United States, 395 U.S. 185 (1969)). The court went on to observe that, “[m]ost importantly, utilizing administrative procedures may eliminate the need for judicial review altogether.” Id. [4] In the instant case, it’s clear that the rationale underlying the exhaustion requirement would not be served by excluding TRA from this case. Judicial review is in no way premature: both the initial hearing and the reconsideration hearing have taken place, the Board has had every opportunity to review and reverse its decision as contemplated by A.S.A.C. § 26.0320, and a final decision has been rendered. Excluding TRA at this stage of the proceedings, when the matter is clearly ripe for judicial review, would serve no purpose whatsoever. Even if TRA did fail to exhaust administrative remedies, we find that, under these particular circumstances, exhaustion is properly excused.4 B. Standing [5] To determine whether a given individual or organization has standing to seek judicial review of a final administrative decision, this court has adopted the familiar two-part federal test: petitioners must demonstrate that they have (a) suffered an “injury in fact” and (b) are arguably within the statute’s “zone of interests.” Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11, 13 (citing United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 733 (1972); California by Brown v. Watt, 683 F.2d 1253, 1270 (9th Cir. 1982) (citing Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-53 (1970); Barlow v. Collins, 397 U.S. 159 (1970); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir. 1981)). 1. Injury in Fact [6] We note at the outset that the injury in fact requirement is an extremely minimal one; indeed, an “identifiable trifle” will suffice. United States v. SCRAP, 412 U.S. 669, n.14 (quoting Davis, 35 U. CHI. L. REV. 601, 613). In this regard, the critical inquiry is not the magnitude of the alleged injury, but simply whether an injury can be identified and whether the party seeking review is actually among the injured. Id. at 687. [7] In its brief, the Board states that “the petition seeking judicial review does not contain any allegation supporting injury in fact to any member of TRA or to the petitioner, McGuire.” See Appellee’s Memorandum of Points and Authorities, filed December 1, 1998, at 8. We disagree. In fact, the petition itself contains several allegations of injuries which would be suffered by both McGuire and members of the TRA, including, inter alia, the drain on a limited water supply and the threat to pedestrian traffic. See Petition for Review, filed October 2, 1998, at ¶¶ 20-21. In our opinion, each of these would independently satisfy the injury in fact requirement. Moreover, the Board cites no authority for the proposition that standing must be based solely upon facts which are alleged in the petition itself. If we look to the entirety of the record (or simply incorporate much of the record by way of reference in the petition), additional alleged injuries may be identified, such as the potential strain on sewage, fire protection, garbage collection, power, telephone and other services. See, e.g., Document No. 9. These alleged injuries undeniably demonstrate more than a “mere interest” in the issue, and the injury in fact portion of the standing test is thereby met.5 Stow v. United States, 696 F.Supp 857, 862 (W.D.N.Y. 1988) (standing was conferred when property owners residing below a proposed dam alleged injuries in fact including a drain on their water supply, risk of physical injury should the dam break, increased noise and air pollution, and damage to the “aesthetics of the surrounding area”).6 2. Zone of Interests [8] The second component of the standing test requires that appellants’ alleged injuries in fact fall within the “zone of interests” which the statute or regulation seeks to protect, an issue of legislative intent. Clarke v. Securities Industry Assn., 479 U.S. 388 (1987). It is manifestly clear that zoning statutes and regulations are designed to protect the rights of neighboring land owners. Those statutes provide, for example, that a variance be granted only when it “would not be injurious to the neighborhood.” A.S.C.A. § 26.0340(a). [9] As residents of the neighborhood for which a variance is sought, appellants’ alleged injuries fall squarely within the zone of interests which those statutes seek to protect. Having alleged injuries in fact which are within the statutes’ zone of interests, McGuire and TRA have therefore properly established standing to bring this action Order For the foregoing reasons, the Board’s motion to dismiss and alternative motion for partial summary judgment are denied. It is so ordered. ********** Directory: archive archive -> Tr-41. 4-03-05-024 Telecommunications archive -> Gary C. Kessler archive -> Tossups center of the known universe open 1998 Combined packet of Tennessee I and utc blue archive -> PriceWaterhouseCoopers Archive 148 linear feet in 98 record cartons and 4 flat boxes. Biography/History archive -> In this issue archive -> United states archive -> - archive -> The Tropical Rainfall Potential (TRaP) Technique. 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