Epa vaapuu, Appellant, V. American samoa government, Appellee

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[1-2] We preface this discussion by referencing Article 1, section 3, Revised Constitution of American Samoa, which reads in part:
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against . . . the destruction of the Samoan way of life. . . . Such legislation as may be necessary may be enacted to protect the . . . customs, culture, and traditional Samoan family organization . . . .
(Emphasis added). In reviewing Article 1, this Court has earlier said: “The message is clear. The Samoan way of life must be protected.” Fairholt v. Aulava, 1 A.S.R.2d. 73, 76 (Land & Titles Div. 1983).
A fundamental feature of “the customs, culture, and traditional Samoan family organization” is that a Samoan family selects its matai, or titular head. In construing the Act, this Court has invariably underscored the importance of preserving the fa`a Samoa (the Samoan way of life) and the rights of those qualified thereunder. In re Matai Title Fagaima, 4 A.S.R. 83, 87 (Land & Titles Div. 1973); In re Matai Title Afoafouvale, 4 A.S.R. 145, 147 (Land & Titles Div. 1975). Thus, “the Court should be always guided by the overarching purpose of the [Act], which is to preserve Samoan culture rather than to destroy it [and] interpret statutes dealing with Samoan custom and matai titles so as to minimize the extent to which customary law is modified or overridden by the imported procedural framework. . . .” In re Matai Title Ma`ae, 6 A.S.R.2d 75, 77 (Land & Titles Div. 1987).
[3] It is plainly obvious from the design, scheme, and purpose of the Act, that the “imported procedural framework” was never attended to displace or supplant the Samoan Family in matters of matai selection. Rather, resort to the “imported procedural framework” is to be availed only where the traditional matai selection process has failed to select a new matai in the customary manner. Hence, the statutorily defined role of the Court “to hear and determine any disputed claim,” A.S.C.A. § 1.0409, is exercised only when a family cannot reach agreement over who should hold the title. In re Matai Title Ma`ae, at 76. Hence the statutory requirement that any petition for matai registration “must” certify “that a family meeting was called and held for the purpose of selecting a successor to the [family’s matai] title, according to the traditions of the family.” A.S.C.A. § 1.0405(b).
It has become quite evident, however, that a number of disputes coming before the Court are generated not by family failure to select a matai, but by premature action of impetuous family members bolting to the Territorial Registrar’s office before “a family meeting [has even been] called and held for the purpose of selecting a successor to the [family’s matai] title, according to the traditions of the family.” A.S.C.A. § 1.0405(b). This troublesome practice forces all other family members desirous of seeking the title, or preserving their rights to be considered candidates to the title, to file counterclaims with the Territorial Registrar, who “may not accept . . . counterclaims . . . filed after the sixtieth day [following the posting of notice of a succession claim].” A.S.C.A. § 1.0407(a). A matai title dispute thus ensues quite unrelated to any family action at all. The “imported procedural framework” thus in actuality becomes nothing less than a catalyst for a matai title case. At the same time, subsequent family meetings under these circumstances are seldom conciliatory. But even so, family choice is restricted to the slate of candidates resulting under the limitations period imposed by § 1.0407(a).
[4] We hardly think that this is the intended or logical consequence of the Act.76 The Act need not, and should not, be construed to allow the statutory registration process, ultimately the Court, to totally supplant and displace a Samoan family from the matai selection process and thereby undermine fa`a Samoa; rather, the Court should only feature in the selection process if, and only if, a family proves unable to reach agreement on a matai. Matai vacancies must be left to the family for resolution at first instance, if the protective policy of the territorial Constitution is given more than mere lip service. Unless and until a family has had a meaningful opportunity77 to thoroughly confront the issue of matai succession and to decide for itself whether or not it can select a new titleholder, the Lands and Titles Division really has no business entertaining matai title cases. Just as the Court has, in another context of traditional dispute resolution, steadfastly declined to substitute its judgment for that of the sa`o in the lawful exercise of matai pule (traditional authority) and responsibility,78 the Court should equally avoid interjecting its judgment on matters of matai succession, to the exclusion of the Samoan family.
[5] In the future, and before referring matai title matters to the Land and Titles Division, the Territorial Registrar should first satisfy herself that a family meeting has been called and held,79 for the purpose of selecting a successor matai according to the traditions of the family, and that the family was not able to select a new titleholder. Otherwise, there is no matai title dispute for certification to the Land and Titles Division.
[6] Finally, we disagree with movants’ contention that the proper consequence of Taulapapa’s premature filing is disqualification. As noted above, this Court has construed the Act so as to promote and preserve not only the fa`a Samoa, “but the rights of those qualified under the statute.” In re Matai Title Fagaima, 4 A.S.R. at 87 (Land & Titles Div. 1973); In re Matai Title Afoafouvale, 4 A.S.R. at 147 (Land & Titles Div. 1975). We see nothing in the Act which suggests that premature filing warrants the extreme action of disenfranchising an eligible heir to the title.80 Such a construction of the Act would be hostile to the fa`a Samoa sought to be protected.

On the foregoing, we conclude that the matter of succession should be remanded to the Taliaaueafe family for the purpose of its choosing a successor matai unfettered by A.S.C.A. § 1.0407 as to any particular slate of eligible candidates. We therefore dismiss the action before us without prejudice to all parties and direct the Territorial Registrar to cancel all offers to register the matai title “Taliaaueafe” and to remand as aforesaid.

It is so ordered.

* Honorable John L. Ward II, District Court Judge, serving by designation of the Secretary of Interior.

* The Honorable John L. Ward II, District Court Judge, serving by designation of the Secretary of the Interior.

1 All references to particular documents are as numbered in the November 30, 1998, memorandum from the Zoning Administrator, transmitting the record to this court.

2 Pursuant to A.S.A.C. § 26.0320(h), a motion for reconsideration must be filed in writing within 10 days of the receipt of the Board’s decision. Although not contested in this case, we note for the record that McGuire’s motion was therefore timely filed.

3 It is possible that McGuire introduced himself at the April 9 hearing as a representative of TRA, as well as a member of the public (appellants’ petition for review, filed October 2, 1998, notes that “[p]etitioners [plural] appeared and testified at the April 9, 1998 public hearing,” at ¶ 5); unfortunately, we can never know with certainty because the cassette tape containing the verbatim testimony at that hearing has been inadvertently erased. While it is true that nothing in the current law explicitly requires that such tapes be preserved, when a member of the public specifically requests that a tape be included in the record for subsequent judicial review—and is assured by the Board that it will be —it is extremely frustrating to this court to later find that tape unavailable. See Document No. 9. As it turns out, we find ourselves with sufficient information to rule on this motion, but hope that in the future such mishaps will be studiously avoided.

4 In this case, where only injunctive relief is sought, and where both appellants independently satisfy the standing requirement (as discussed below), TRA’s continued participation would appear to be largely symbolic. We can conceive of a situation in which this would not be the case, however, and we obviously leave it to future courts to decide whether the exhaustion requirement should be excused under whatever particular circumstances may confront them at that time.

5 In its brief, the Board argues that so-called “procedural violations” usually cannot constitute injuries in fact. See Appellee’s Memorandum of Points and Authorities, at 8-9. As discussed above, we find sufficient non-procedural injuries in this case to meet the injury requirement; however, we note in passing that one can enforce procedural rights “so long as the procedures in question are designed to protect some threatened concrete interest of the person’s that is the ultimate basis of the person’s standing.” 2 AM. JUR. 2D Administrative Law § 449— Procedural Injury based on statutory right (1994 & Supp. 1998).

6 We note also that McGuire, at least, further alleges potential economic injury. See, e.g., Document No. 25 (the variance would “diminish the value of my home”). While economic injuries are not necessary to confer standing, they are nearly always sufficient for that purpose, even if the economic injury alleged is “minuscule.” National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689, 693 (D.C. Cir. 1971).

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Commonwealth of the Northern Marianas Islands, serving by designation of the Secretary of the Interior.

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, District Court for the Commonwealth of the Northern Marianas Islands, serving by designation of the Secretary of the Interior.

7 The Samoan anti-usury statute provides, in pertinent part:

Except as provided in this title, no person may charge more than 15 percent a year as interest on a debt or obligation, and no agreement to pay a rate of interest higher than 6 percent a year shall be enforceable unless the same is in writing and is signed by the party to be charged. The rate of interest when there is no written agreement with respect thereto shall be 6 percent a year, and interest shall be presumed on overdue debts.

A.S.C.A. § 28.1501(a) (1992).

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals, for the Ninth Circuit, serving by designation of the Secretary of Interior.

** Honorable Alex R. Munson, Chief Judge, District Court of Northern Mariana Islands, serving by designation of the Secretary of Interior.

8 Samana requested that the following instruction be given:

A person may not be convicted of illegal possession or cultivation unless he knows contraband is present and is capable of exercising dominion and control over the contraband, mere proximity to the contraband and presence on the property where it is found is insufficient to establish constructive possession.

The court instructed the jury on the issues of possession as follows:

A person has possession of marijuana if the person knows of its presence and its nature and has physical control of it, or has the power and intention to control it. More than one person can be in possession of marijuana if the each knows of its presence and its nature and has the power and intention to control it. [Govt. Brief at 24.]

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Commonwealth of the Northern Marianas Islands, serving by designation of the Secretary of the Interior.

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, District Court for the Commonwealth of the Northern Marianas Islands, serving by designation of the Secretary of the Interior.

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of Interior.

9 A.S.C.A. § 46.3201(c) imposes the scienter requirement of “knowingly” on all crimes of possession.

10 We note that even in Pua`a’s version of the facts, he accepted $500 from someone he believed to be a drug dealer to transport a suitcase to Samoa. From this alone, it may have been reasonable for the jury to infer his knowledge of the suitcase’s contents. Cf. United States v. Ramirez, 176 F.3d 1179 (9th Cir. 1999) (might be reasonable to infer drug smugglers do not entrust large drug shipments to unknowing couriers).

11 Pua`a additionally raises the frivolous argument that trial counsel was incompetent for his failure to argue that the search of Pua`a’s suitcase was not supported by reasonable suspicion in violation of Am. Samoa Const. Art. I, § 5. Border searches, however, need “only the articulation of some facts which would lead a reasonable and objective customs officer to believe the search to be necessary.” ASG v. Vagavao, 3 A.S.R.3d 72, 75 (Trial Div., 1999). That standard being met, Pua`a’s appeal on this issue is without merit.

12 The government cites United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996), for the proposition that the instruction provided by the trial court satisfies Carter. We disagree with Castaneda. The plain language of Carter requires a “no inference” instruction upon request. See Carter, 450 U.S. at 300 (“[A] criminal trial judge must give a single ‘no adverse inference’ jury instruction when requested by defendant to do so.”). Carter explicitly held the “presumption of innocence” instruction was not an adequate substitute. See Carter, 450 U.S. at 304. We conclude the “no obligation to testify” instruction is also not an adequate substitute. See United States v. Brand, 80 F.3d 560, 567 (1st Cir. 1996) (Carter not satisfied by instruction on burden of proof and obligation to testify). See also United States v. Eiland, 741 F.2d 738, 743 (5th Cir. 1984); United States v. Bailie, 99 F.3d 1147, 1996 WL 580350, *5 (9th Cir. 1996) (unpublished disposition) (defense counsel objected to “no inference” instruction because he felt “it may in some cases encourage the jury to draw adverse inferences from a defendant’s silence”); Hunter v. Clark, 934 F.2d 856, 859 (7th Cir. 1991) (noting Indiana Supreme Court holds right to object to “no inference” instruction is necessary to right to silence). On the record before us, we cannot conclude that trial counsel’s failure to request a “no inference” instruction was the result of incompetence rather than tactics.

* The Honorable John L. Ward II, District Court Judge, serving by designation of the Secretary of the Interior.

* The Honorable John L. Ward II, District Court Judge, serving by designation of the Secretary of the Interior.

** The Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

*** The Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Marianas Islands, serving by designation of the Secretary of the Interior.

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Commonwealth of the Northern Marianas Islands, serving by designation of the Secretary of Interior.

13 It appears Ulimasao was temporarily stationed in California for work. His immediate family remained in American Samoa.

14 Fagaoali`i did not present this issue to the trial court until his motion for reconsideration, claiming he was previously unaware of the relationship. See Order Denying Motion For Reconsideration or New Trial at 5. The trial court found it “difficult to believe that . . . Fagaoali`i and his counsel would be unaware of this relationship and activities . . .” Id. Ulirnasao claims that Fagaoali`i’s counsel is, in fact, “closely related” to the same judge. See Ulimasao Br. at 11. The trial court, nonetheless, addressed the merits, presumably deciding that Fagaoali`i had not waived the issue.

15 We note that A.S.C.A. § 3.1007 requires a judge to disqualify himself [herself] in situations where he [she] or a family of which he [she] is a member has a “substantial interest.” In In re Matai Title “Faumuina,” 26 A.S.R.2d at 5, this Court defined “substantial interest” as encompassing the “appearance of impropriety” standard set out in the Canons of Judicial Conduct.

16 Agent Lagai had also received a tip that defendant had engaged in smuggling and might attempt to introduce contraband into the Territory. However, he conceded at the hearing that this tip did not come from a reliable source, and asserted that it was not a significant reason behind his actions that morning. For these reasons, we disregard this evidence and the discussion below will, accordingly, analyze whether those other reasons cited by Agent Lagai were independently sufficient to justify the search of defendant’s person. Mere heightened awareness which may have resulted from the tip will not doom an otherwise valid search.

17 In Vance, the Ninth Circuit noted, among other factors, that agents “had observed that [the defendant’s] trip was too short to make sense.” 62 F.3d 1152, 1156 (1995). Similarly, Agent Lagai noticed that Vagavao was scheduled to return the same day and therefore likely was not on vacation; at the same time, Lagai also saw that the defendant did not travel with his usual cargo which would signify his intent to engage in business. Taken together, these two observations suggest, at the very least, a reasonable question as to the motives for Vagavao’s visit to American Samoa.

18 The Eleventh Circuit held a border search to be valid when one factor considered by agents prior to the search was that the defendant “was dressed in clothes typical of undocumented aliens” and that the 12-passenger van driven by the defendant was “typical of those that transport large numbers of undocumented aliens.” United States v. Cruz-Hernandez, 62 F.3d 1353 (1995).

19 Like Vagavao, the defendant in Vance was wearing an additional layer of underclothes in a “tropical climate,” and the agent had recognized a “suspicious bulge under his pants.” These factors were critical to the court’s determination that the search was properly based on “real suspicion.” 62 F.3d 1152, 1156 (9th Cir. 1995).

20 A separate and distinct privilege, which protects the confidentiality of spousal communications, was also developed at common law. Unlike spousal immunity, which can prevent testimony regarding conduct or other facts, this more limited privilege shields only private communications between husband and wife, for the specific purpose of encouraging openness and honesty within a marriage. United States v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977); Bergner v. State, 397 N.E.2d 1012 (Ind. 1979); Coleman v. State, 380 A.2d 49 (Md. 1977). In the instant case, Togiailua’s wife would be testifying as to an act which she observed rather than a confidential conversation between herself and her husband. Thus, the marital communications privilege is inapplicable.

21 We note that if a search continues after all the items identified on the warrant had been found, then the further search activity may constitute an unlawful intrusion and thereby render the plain view exception inapplicable. In this case, however, several of the listed items were never located, so there is no issue regarding the order in which the various pieces of evidence were found.

22 In his motion, Tuaolo observes that “[i]t is general knowledge that almost every family in American Samoa has a masking tape [sic] for taping fine mats and other items.” Motion to Suppress, at 3. This argument misses the point. The requirement that the, evidence be incriminating does not mean it must be inherently incriminating (e.g., guns, drugs, contraband), but. rather, as one court put it, that it “clearly and definitely relate to. the behavior which prompted the issuance of the search warrant.” State v. Michaelson, 214 N.W.2d 356, 359 (Minn. 1973). As in the instant case, even an otherwise common and innocuous item such as a roll of masking tape may, under certain circumstances, serve as incriminating evidence and would therefore be appropriate for seizure.

23 The Fourth Amendment to the U.S. Constitution is mirrored in our own Revised Constitution of American Samoa at Article 1, Section 5.

24 Cf. United States v. Jones, 475 F.2d 723, 728 (5th Cir. 1973):

[Whether hands were cuffed in front of behind the body is] relevant to weapons or destructible evidence is the crucial factor in the Chimel analysis.

25 We realize that police reports are hardly produced with the needs of defense counsel in mind, but public safety officers would be well-advised to use in their written reports a more accurate and inclusive term such as “constitutional rights” or “Miranda rights,” given Agent Snow’s testimony at the hearing we are not particularly troubled by the report entry. Although it is of critical importance that the full Miranda warnings actually be given, we do recognize that, as a term of reference to this process, “the right to remain silent” may be viewed by some— however incorrectly—as an interchangeable descriptive phrase. Moreover, Agent Snow did have a reasonable explanation for the entry, testifying that in the course of advising the defendant of all of his constitutional rights, he had particularly expounded upon the right to remain silent, and had merely meant the report to reflect this fact.

26 Alfred Faumuina is the same person as Poe Faumuina, the named defendant in CR No. 48-99. Identity is not at issue in either case.

27 Poe Faumuina is the same person as Alfred Faumuina, the named defendant in CR No. 8-97. Identity is not at issue in either case.

28 Under Shelton, opposing counsel may be deposed when (1) no other means exists to obtain the desired information; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to case preparation. 805 F.2d at 1327.

29 A second cause of action, related to the appointment of a Chief Procurement Officer, has been rendered moot by the Appellate Division’s decision in BHP Petroleum South Pacific, Inc. v. American Samoa Government, 2 A.S.R.3d 10 (App. Div. 1998) and the Governor’s subsequent appointment of ETC Lob Letalu Moliga to that post on July 15, 1998. See General Memorandum No. 51-1998, Office of the Governor, attached as Exhibit A to Respondents’ Motion for Summary Judgment and Memorandum in Support.

30 Even where no explicit provision in a constitution mandates a clear separation of powers, such a requirement may be inferred from the organization of government into three distinct branches: executive, legislature, and judiciary. 16 Am Jur 2d, Constitutional Law--§ 295; Springer v. Philippine Islands, 277 U.S. 189, 201 (1928) (application of separation of powers doctrine to territorial organic act is “a conclusion logically following from the separation of the several departments”).

31 We are not presented with a challenge to the confirmation requirements for any other officials and decline to rule on the application of this decision thereto. However, we do note an important legal distinction between the Secretary of Samoan Affairs and all other executive officers listed in A.S.C.A. § 4.0301: while the former position is established in the Constitution itself pursuant to Article IV, Section 4, all of the latter are statutory creations. Although the legislative branch may not limit a constitutionally-granted power of appointment absent express constitutional delegation, there is some authority suggesting that when a legislature has itself empowered a governor to make certain appointments, then it is free to impose such conditions and limitations as it sees fit. 38 Am Jur 2d - Governor, § 5; State ex. rel. Harvey v. Wright, 158 S.W. 823, 826 (Mo. 1913).

Furthermore, a critical historical distinction also places the Secretary of Samoan Affairs in a unique position vis-à-vis all other executive appointments. Unlike the other posts, which have been added gradually by statute over the years, the position of Secretary of Samoan Affairs dates back to the very origins of our modern, democratic form of government. On May 1, 1900, the first territorial governor, Commander B.F. Tilley, established by regulation the system of district governors, county chiefs, and village mayors which formed the antecedents of the current Department of Local Government. As the critical liaison between himself and this system of local officials, he appointed Mr. Edwin W. Gurr to the new post of Secretary of Samoan Affairs. Fofo I. F. Sunia, The Story of the Legislature of American Samoa 12-14 (The Legislature of American Samoa, GP Printers 1998).

One recent account of this early period places the importance of the position in its proper historical perspective:

In the absence of government departments and agencies, the “Samoan Affairs” office was the focus of everything, and its head—the “Secretary”—was the man on the spot. The Governor relied on his expertise and counsel, and the people depended on him to relay their concerns to the Governor. Indeed, [the Secretary] was near indispensable.

Id. at 14. Perhaps it is this historical prominence which explains the decision by the framers to enshrine that position in the Revised Constitution of American Samoa itself, rather than leaving its creation to the whims of the Legislature. Whatever the reasons, however, the Secretary of Samoan Affairs remains both legally and historically distinct from his counterparts elsewhere in the executive branch, and this opinion is therefore strictly confined to the application of A.S.C.A. § 4.0112 to that particular position.

32 Note that not all statutes which present separation of powers concerns will be declared unconstitutional. In Nixon v. Administration of General Services, the U.S. Supreme Court enunciated the following test for making this determination:

[T]he proper inquiry focuses on the extent to which [the statute] prevents the Executive Branch from accomplishing its constitutionally assigned function. Only where the potential for disruption is present [must the statute be struck down].

433 U.S. 425, 443 (1976). See also Parcell v. Kansas, 468 F.Supp. 1274 (D.Kan. 1979).

Applying this test in the context of a challenge to confirmation procedures, the court in Luis v. Dennis found that even a minor alteration to the voting requirements (requiring confirmation by a majority of all legislators rather than merely a majority of those present) was sufficiently disruptive as to be declared unconstitutional. 567 F.Supp. 733 (D. V.I. 1983). Certainly, the imposition of confirmation requirements in the first place would also meet this test. By definition, the power of confirmation carries the potential for the rejection of the Governor’s chosen appointee and thereby gives the Legislature the ability to effectively vitiate the executive’s constitutionally designated powers.

33 Note that although somewhat related, the two issues of foreseeability in this case are in fact quite distinct. The first, discussed supra at pages 10-11 with respect to ASG’s liability as prison custodian, looks from the unique perspective of the Correctional Facility officials. In evaluating the issue, we found it to be reasonably foreseeable that this particular inmate—given his own particular criminal history—would rape again if given the chance.

In this new inquiry as to foreseeability, however, we are now called upon to adopt the perspective of ASG as landlord. For these purposes, we examine a different body of evidence altogether: we look not at the history of any given inmate, but rather at the overall history of crime in the Government Housing tract. Foreseeability in this context presents a more difficult hurdle, as Gibbons must demonstrate foreseeability not only that any given escapee would commit a violent crime of this nature, but also that an inmate so inclined would escape in the first place and even be given the opportunity to do so.

34 This motion is addressed by separate order.

35 This motion is addressed by separate order.

36 We note that, in relevant part, T.C.R.C.P. 37 is identical to its federal counterpart. Because Rule 37 has seen little use in this jurisdiction, we choose to look primarily to the federal courts for guidance in its application

37 A Principal agent relationship exists when the Principal intends that an agent act for him, the agent intends to accept the authority and acts on it, and this intention is expressed either in words or conduct between them. 3 Am.Jur.2d Agency § 17 (1986).

38 The Crew also makes a claim for what they term “trip number 27,” related to the time which the Crew spent in port awaiting clearance to sail on their next fishing trip. This issue will be addressed separately below.

39 We further note that, when administered correctly and fairly, the short check system worked primarily to the benefit of the Crew, allowing them to receive the vast majority of their wages almost immediately upon return to port. The alternative, which the owners could as easily have practiced, would have been to wait until the Final Settlement statements were released to make any payment at all.

40 These two terms are used interchangeably to refer to all crewmembers below the rank of deck boss, who generally perform a multitude of tasks aboard the vessel.

41 The Zuanich fleet consisted of up to twelve purse seiners, all of which were managed by Lawrence Zuanich and certain members of his family (most notably, two individuals commonly identified as “Brother John” and “Cousin John”).

42 Thomas Meneghini, who served as General Manager of the Zuanich operations, testified that adjustments were made at least as far back as 1993, the date of the earliest records which he had reviewed. Tr. at 401.

43 Given any worker’ s natural interest in compensation issues and, in particular, the close quarters of the working environment aboard a fishing vessel such as the Kassandra Z, the knowledge of the fish captain and the master are sufficient to convince us that the rest of’ the crewmembers understood their wages to be based upon an adjusted tonnage calculation.

44 Even if we were to consider the Gemini fleet for purposes of establishing the “comparable seaman,” however, it would be unfair to apply the wage/ton of one ship and the tonnage calculation system of another. TCW argues, quite rightly, that one company may choose to pay its seamen based on gross tonnage, but could then reduce the wage per ton accordingly to result in the same — or even reduced — net wage.

45 There exists a minor disagreement regarding whether the common definition of rejects included fish “3 lbs. and under” or fish only “under 3 lbs.” Based on these and other transcript passages cited herein, we find that the weight of the testimony supports the latter conclusion. Fish weighing exactly 3 lbs. were understood generally by the Crew to be included in their wage calculations, while only those under 3 lbs. were known to be excluded.

46 When the Chloe Z came into port, that crew was apparently confined to the vessel for a full 96 days, and the fish were never unloaded prior to the date of arrest.

47 Moreover, although the facts were indeed slightly different in Guam, Judge Unpingco does make a compelling argument which applies equally to the Kassandra Z:

A fully manned boat, ready to embark on a voyage, was invaluable to a fishing venture desperately seeking cash flow. The release of these men would mean that Chloe Z Fishing Company, Inc. would have to go to the time, trouble and expense of re-manning the vessel. The crew was primarily from Croatia. It would have taken weeks or months to have the boat manned from this source, and would have cost tens of thousands of dollars. In sum, the Chloe Z Fishing Company, Inc. received tangible benefits including a maintained and serviced vessel . . . and a cash savings that could easily exceed $100,000.00. Furthermore, it received the intangible benefit of greater bargaining power against its many creditors, each desperate to recoup losses, and presumably prepared to place hope that the next fish catch would provide the badly needed cash to make the debtor solvent again.

Memorandum Order, at 12.

48 Indeed, these settlement offers exceeded those offered by the U.S. Department of Commerce, itself a holder of senior mortgages on six Zuanich boats. TCW’s Trial Brief, at 3.

49 Mr. Meneghini did later hedge on these admissions, stating that he could not be sure of the errors until he had been afforded an opportunity to review the full records. Tr. at 421. In the absence of further evidence, however, we are willing to give the Crew the benefit of the doubt and award them credit for those missing tons accordingly:

Exhibit 52 reflects an overpayment of 82 tons on trip 17. Subtracting this amount from the 203.5 tons still owing, the Crew ‘shall be paid on 121.5 tons for that trip.

Exhibit 52 reflects an overpayment of l8 tons for trip 18. Subtracting this amount from the 83.9 tons still owing, the Crew shall be paid on 65.9 tons for that trip.

50 Neither Milisic nor Falante sailed on trip number 26, but agreed wages will also serve as the basis for these individuals’ recovery in quantum meruit, as discussed below.

51 Exhibit 57, Tr. at 416.

52 Exhibit 60, Tr. at 419.

53 Exhibit 58, Tr. at 418.

54 Exhibit 62, Tr. at 419.

55 Exhibit 63, Tr. at 420.

56 Exhibit 12, Tr. at 62.

57 Exhibit 3, Tr. at 47.

58 Exhibit 58, Tr. at 419.

59 See notes 15-21, supra.

60 TCW stipulates to payment only for those Crewmembers who actually returned home following trip number 26 and who have not already been paid. Tr. at 426.

61 In distributing the total monies received as a result of this order, the Crew is also free to compensate Mr. Milisic for this amount as it may deem appropriate.

62 Cf. Cal. Gov’t Code § 27705:

[T]he public defender shall devote all his time to the duties of his office and shall not engage in the practice of law except in the capacity of public defender (emphasis added).

Unlike A.S.C.A. § 4.0320(d), California’s more restrictive statutory language clearly excludes pro bono work, prohibiting all practice of law “except in the capacity of public defender.”

63 The court hearing the motion on May 14, 1998 properly declined to recognize Pogisa’s counsel as the deceased’s counsel. Eventually, on December 11, 1998, Pogisa was appointed as administrator of Tuiveta’s estate and was thus enabled to become a party in Tuiveta’s place in this action. However, no formal motion by any interested entity was ever made for Pogisa’s substitution as a party. Perhaps counsel understood the court’s ruling to mean that the only necessary step was a formal substitution of counsel for Pogisa’s present counsel to replace Tuiveta’s original counsel, who was ineligible to practice law when he became the Governor of American Samoa, under H.C.R. 146. The substitution of counsel was filed on July 24, 1998 and was approved on December 16, 1998 after the present court became aware of it. However, the substitution, if necessary at all, did nothing more than to merely relieve the original counsel of any remaining obligation of record in this action.

64 We are using the lot sizes given in ASG’s map, Drawing 1863 “B”, but note that the original lease states that Lot 11 contains approximately 2.203 acres, and the amendment to the lease states that the total area is 2.626 acres. The precise configuration and size of either lot or the total area is not presently an issue before the court to resolve.

65 The copy of the lease in evidence does not have the actual beginning and ending dates appended. The copy of the amendment in evidence also does not include these dates. No other evidence of these dates is before us, but again we are not called upon at this time to resolve this issue. We further note that, with the two options to extend, the total prospective duration of the lease is 75 years. Leases of communal land are statutorily limited to 55 years and require the Governor’s approval under A.S.C.A. § 37.0221, but once more, even if we find that the two parcels of land at issue are communal land, the application of § 37.0221 to the lease, as amended, is not now an issue before us.

66 The court awarded the matai title “Laie” to Laie in In re Matai Title “Laie”. Both Laie and Tuiveta were among the several candidates vying for the “Laie” title in that matai title action. Hence, we take judicial notice of the court’s file, MT No. 5-90, and the transcript of Tuiveta’s testimony in that matai title controversy on this point and for other purposes discussed in this decision. See infra p. 6.

67 The lease and its amendment refer to Tuiveta as the sa`o of the Misa family. Pogisa identified a distinct Misa family in Fitiuta headed by the holder of the “Misa” matai title. In his affidavit filed for the preliminary injunction hearing in this action, Tuiveta also acknowledged that there is a Misa family in Fitiuta, but he clearly stated that he signed the lease and amendment only as the head of the nuclear Misa family descending directly from Misa Leafu. Tuiveta Aff. at 1. Pogisa also pointed out that Tuiveta was a blood member of the Taaga family of Fitiuta, as well as the Laie family.

68 We take note, however, that the court in In re Matai Title “Laie” found that Tuiveta did not recognize any of the three opposing candidates, and accordingly by implication Laie Aniva and Laie Taulago, as blood members of the Laië family, and that despite his professed motivation as a title candidate to unite the family, Tuiveta was strong willed and uncompromising in his attitude on this and other issues. In re Matai Title “Laie”, 18 A.S.R.2d at 40-41.

69 Although he was born and raised on the Island of Tutuila, Salele`a Tuiolemotu learned about lands in Fitiuta from occasional visits there with Pogisa and his employment with the right-of-way division of ASG’s Department of Local Government (headed by the Secretary of Samoan Affairs) as a surveyor’s assistant. He was present during the surveys of the lots within the Fitiuta airport and participated in determining the damages to be paid for the loss of crops from the airport construction.

70 We also want it clearly understood that as a matter of general principle, and under the facts of this case in particular, a member of a Samoan family cannot acquire individual title by adverse possession to the portion of the family’s communal land assigned to him or her. See Utu v. Fuata, 17 A.S.R.2d 104 (Land & Titles Div. 1990).

71 Such limitations include the general requirements that he exercise his pule (“power”) for the benefit of family members and that he not act in an arbitrary or capricious manner with respect to land assignments or leases. Pen v. Lavata`i, 25 A.S.R.2d 164, 168 (Land & Titles Div. 1994), aff’d 30 A.S.R.2d 10, 19 (App. Div. 1996).

72 Note that intent is not a relevant factor in determining whether a family assignee has relinquished his or her rights to assigned communal land: “Relinquishment of possession may be either by voluntary surrender or by abandonment by the family member. 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.” Toleafoa, 7 A.S.R. at 122.

73 While it is true that in some cases individual family members have been permitted by the court to lease the use of buildings, such buildings had become the property of the individuals, rather than the family as a whole, pursuant to a legal separation agreement. See Fagasoaia, 18 A.S.R.2d 72. A separation agreement creates personal property rights in the building distinct from those in the land itself, which remains vested in the sa`o on behalf of the family. A.S.C.A. §§ 37.1501-.1506. With this exception, however, the general rule that the sa`o controls the distribution of the family’s communal lands remains our guiding principle.

74 Similarly, the Court in Fagasoaia divided lease payments to provide for a $200 per month payment to the plaintiff “as compensation for the use of land formerly occupied by him.” 17 A.S.R.2d at 95.

75 The court in Taylor v. Fagaima Family also directed the Territorial Registrar to register the adjudicated land as the Fagaima family’s communal land. The Registrar was given a copy of the court’s decision.

76 There is contrary dicta found in In re Matai Leiato, 2 A.S.R.2d 94, 96 (Land & Titles Div. 1986), suggesting that current law allows individual resort to the matai registration process to thereby effectively bypass the family altogether. Such a suggestion, however, is inimical to fa`a Samoa and constitutional protective policy.

77 Without intending to prescribe any procedural format for family meeting(s) “according to traditions of the family,” we note that “good faith effort to iron out disputes” is, in the Samoan way of life, “discussions, discussions, and discussions.” Fairholt v. Aulava, 1 A.S.R.2d. 73, 78 (Land & Titles Div. 1983). Emphasis in original.

78 See e.g. Fairholt v. Aulava, 1 A.S.R.2d. 73, 79 (Land & Titles Div. 1983)(“The court will not substitute its opinion or its judgment for that of the Sa`o”); Gi v. Temu, 11 A.S.R.2d. 137, 142 (Land & Titles Div. 1989)(“Courts will not interfere with decisions of sa`o unless they are arbitrary, capricious, illegal, or abusive of discretion”).

79 It is equally important to ascertain whether or not a meeting was called according to family tradition. The Court in In re Matai Title Misa`alefua, 28 A.S.R.2d 106 (Land & Titles Div. 1995), had occasion to comment disparagingly about party claims to clan support based on the practice of private meetings in private homes by individual candidates and their immediate supporters. Family meetings entail appropriate notice to the family’s clans with venue at an appropriately neutral setting such as the family’s guest house.

80 That is not to say, however, that the giving of false affidavits and declarations are not without legal consequences. The giving of false averments are criminal offenses. See A.S.C.A. §§ 46.4606-07.

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