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PUBLISHED EVERY FRIDAY IN THE "SAMOA NEWS", "LETTERS OF THE LAW" IS MY LEGAL Q&A LEGAL COLUMN. HOPEFULLY WRITTEN TO BE BOTH FUN AND INFORMATIVE, I HAVE WRITTEN COLUMNS SINCE OCTOBER OF 1996. THE RESPONSE FROM THE READING PUBLIC (cir. 20,000) HAS BEEN POSITIVE, AND THE FUTURE SEES THE COLUMN BEING TRANSLATED INTO SAMOAN FOR INCLUSION IN THE SAMOAN LANGUAGE SECTION OF THE PAPER AND THE DREAM IS TO SYNDICATE IN A NUMBER OF PAPERS, AT THE OUTSET THOSE WHICH SERVE THE VARIOUS SAMOAN COMMUNITIES AROUND THE WORLD. EVERY COLUMN INCLUDES THE FOLLOWING "CAVEAT", WHICH I SHOULD INCLUDE HERE JUST IN CASE...
"Letters of the Law" is a weekly column that appears on Fridays in the Samoa News. The column is written by Brian Thompson (Esq.), a member of the American Samoa Bar Association who is in private practise. Mr. Thompson is writing the column as a public service--we neither pay him nor does he pay us. Mr. Thompson will try to answer questions posed by you, the readers. There is no charge, and no guarantees.
In the words of Mr. Thompson, "remember, free legal advice is worth what you paid for it. If you have a serious legal problem, contact a lawyer of your choice."
THE FOLLOWING IS IN NO PARTICULAR ORDER. ENJOY, AND SEND ANY QUESTION YOU MAY HAVE ...
Dear Brian: A few months ago, I loaned $500 to a down-on-his-luck friend who promised to pay me back when he sold his car, but we did not have a written agreement. He sold his car and now claims he owes me nothing. What can I do?
First, practically, it is probably best to stop considering this a "loan". When you give money to friends and family based on an oral rather than a written agreement, be prepared to consider it a "gift". It may be best to chalk this one up to experience and hope your good deed is rewarded in the future.
However, legally, as your claim is for less than $1,000, you could bring it in the small claims department of the District Court. There, you will need to prove the existence of the debt by a "preponderance" of the evidence; in other words, you'll have to convince the judge to believe your story that there was a loan more than he believes your friend's that there wasn't. The fact that the agreement is not in writing is not fatal to your claim. Only a few types of agreements must be in writing to be legally enforceable--such as those relating to the transfer of interests in land. A loan such as this does not need to be in writing, but you'll find when it comes to proving the existence of an agreement, it would be much easier if it was in black and white. Good luck.
Dear Brian: One of my credit cards charges 21% interest!! I thought there was some limit in American Samoa to the amount of interest a company can charge? Do I have to pay 21%?
In ancient times, a merchant who extracted an exorbitant or illegally high rate of interest would have their hands cut off as a penalty. Ouch! Then, 1-2% interest was considered "usurious", the fancy legal term for an excessive or illegal rate of interest. Today, what is considered usurious is determined by a particular jurisdiction's legislature. In American Samoa, except for limited circumstances when 18% is the upper limit, the Fono has set the upper limit at 15% for transactions originating in the Territory. However, according to A.S.C.A. §28.1505, the maximum rate on "credit cards" is determined by reference to the law of the credit card issuer's "principal place of business". Chances are your credit card is issued by a company in a jurisdiction which sets 21% as the upper limit of allowable interest. Yes, you have to pay, though I would shop around for a card with a lower interest rate and transfer your balances to it. I did, and now have cards at 5.7% and 8.9%.
Oh, fortunately or unfortunately, depending on your point-of-view, the penalty for extracting an usurious rate of interest in American Samoa is a little less physically painful: possible criminal conviction and the forfeiture of the debt upon which the usurious rate was imposed. Still hurts.
Dear Brian: When I die, I want to be buried with a picture of my wife and children. I have a Will, but it doesn't say this. How can I change it?
When I die, I want to be buried in my Seattle Mariner's baseball hat (since I will live another 50-60 years, I'm assuming they will have won the World Series by then ... hopefully). My father--the professional golfer--wants his ashes scattered over his favorite golf course. The last place we want these directions to be is in our wills.
Typically upon death, funeral arrangements and burial take place before the Will is even read. As it may be many years since you prepared a will, your friends and family might not remember the special wishes you had for your burial. There is nothing worse than reading a Will to a deceased's heirs and discovering the deceased wanted something special (their favorite hat, a picture). The legal process and emotional difficulty of exhuming a body is to be avoided.
To avoid it, put your directions as to your funeral and burial in a document entitled "Advanced Health Care Directive". This document allows you to appoint successive "agents" (usually a spouse and close family member) who will make health care decisions for you if you are incapable of doing so. In the Directive, you can instruct your agents how to act in certain circumstances: such as instructing them whether or not you wish to receive artificial nutrition or hydration if you fall into a terminal condition or permanent coma. It is in the Directive that you should detail your directions regarding the disposition of your remains, such as being buried with a picture of your wife and children. Forms for these documents, sometimes known as "Living Wills", are usually available at local hospitals (though apparently not LBJ), or can quickly be prepared by an attorney of your choice.
Of course, the Directive is only useful if your agents know about it and know they are your agents. Make a point to update your Directive every year to ensure it reflects your current wishes, and then contact your appointed agents to ensure that they still have a copy of your Directive and are willing to serve their appointed function.
Dear Brian: Why do I need a Will? I just want all my assets to go to my spouse and children; won't that happen automatically when I die?
You're right. If you die without a Will ("intestate" is the legal term), after paying your debts, your estate will be distributed to your spouse and children. Your spouse has "dower" rights to 1/3 of your estate, and your children (or grandchildren if a child is deceased) share in the remainder. A.S.C.A. §40.01-.02. However, this process is not "automatic" and therein lies the problem.
Though your spouse and children are entitled to your estate, they only receive it after going through "probate" in the High Court of American Samoa. The process of probate is basically the collecting all the deceased's assets, paying the debts, and then distributing the remaining assets to the rightful heirs. Though not nearly as expensive as probate in the United States, it is costly and, more importantly, can consume a great deal of time. In the past, I've had the painful job of telling a grieving spouse that she cannot take money out of her husband's checking account for a few months (her only source of money) because these assets have to pass through probate first.
Though each situation is different, everyone needs to plan for what happens to their assets when they die. Though doing nothing is a form of planning, it probably is not the most effective. The best is the use of one or more probate avoidance measures. In the above example, the husband should have kept the family's money in a joint checking account with rights of survivorship and the money then would have passed automatically to the wife without going through probate. Additionally, through the use of a "trust" arrangement, all of one's assets can pass to another "automatically", thus never encountering the delay of probate (which can be important for the continued success of a family business or for tax purposes). If attorneys are valuable for anything, it is to help plan for death (which may say something about why we are not always the most popular profession).
Dear Brian: Why do lawyers put "esq." after their names and what does it mean?
"Esq.", short for "esquire", is an English term signifying the title of the office of barristers at law. It actually identifies an English title of dignity higher than "gentlemen" but lesser than "knight". Why American attorneys have adopted it is unclear and there are some lawyers who reject it as outdated. That most attorneys continue to use the term has something to do with the fact we study for many years and receive doctorate degrees, but aren't normally thought of doctors such as those who study for and receive PhDs. In other words, we like to show off too. As the term has become synonymous with the legal profession, I use it as shorthand to quickly identify my profession on correspondences. As I've been called much worse (usually by my secretaries), I take no offense if you don't use it when you write to me.
A brief intermission from your inquires for a few words about a special day next week which unexplainably is not a legal holiday. Next Monday is the "First Monday in October"--a celebrated event for the legal possession--the traditional opening day for the new term of the United States Supreme Court.
SUPREME COURT -- The Supreme Court has ultimate (final) jurisdiction over all cases arising under the Constitution, laws, and treaties of the United States. Without getting into too much detail, its decisions are binding on the courts, and thus people, of American Samoa.
The Supremes, as they are sometimes affectionately known, are 9 distinguished men and women who in essence perform two functions: they interpret acts of Congress and determine whether statutes conform to the Constitution. Currently, the Supremes are Chief Justice William Rehnquist and his eight associates: Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, David Souter, John Paul Stevens, Clarence Thomas, and Stephen Breyer.
The Justices are nominated by the president, usually approved by the Senate, and their appointments are for life with removal only by impeachment (which has never happened). Recent years have witnessed the retirement of two of the most highly respected jurists of the past 40 years (and two of my favorites)--Thurgood Marshall and Harry Blackmun. I've had the honor to meet three of the Justices (Kennedy, Ginsburg, and Blackmun) and found them all to be imminently approachable and friendly.
From October to June, the Court holds open hearings from 10:00 AM until 3:00 PM, Monday-Thursday (they do break for lunch). It is a sober and dignified procedure throughout, from the moment the red velvet draperies are opened and the black-robed justices take their seats to the time the chief justice declares the session at an end.
The public is invited to observe the hearings in the 188 first-come, first-served seats available. As the hearings can be mind-numbing to even those with legal training, the 188 observers rotate every few minutes as those watching get their fill of the experience and yield their seats to others in the long-line waiting for an opportunity to enter the cathedral-like courtroom and watch the proceedings. In 1991, while a law student, I had the privilege of working on a case which found its way to the Supreme Court. I will never forget the awe I felt entering the courtroom and watching "my" case being argued to Justices. If there is a Superbowl for lawyers, that is it.
The great historian/philosopher Alexis de Tocqueville once noted: "Scarcely any question arises in the United States that is not resolved, sooner or later, into a judicial question." Though Tocqueville made that statement in 1834, history has born out his observation. Supreme Court decisions have touched almost every aspect of American life and often mirror the times in which they were decided (not always for the good):
In Marbury v. Madison (1803), the Court established its power to review acts of Congress and declare invalid those it found in conflict with the Constitution. In Plessy v. Ferguson (1896), the Court upheld the doctrine of "separate but equal" facilities for blacks and whites, but belatedly corrected this terribly decision in 1954's Brown v. Board of Education, holding the practice inherently unequal and violative of due process. In Standard Oil. Co. v. United States (1911), the Court broke up the the huge company as an unreasonable restraint of trade, and set the precedent for the breakup of Ma Bell years later. In United States v. Nixon (1974), the Court rejected the president's attempts to keep his papers secret. Days after the decision, Nixon resigned. In New York Times Co. v. Sullivan (1964), the Court ruled that the First Amendment guarantee of freedom of the press protected the press from libel suits for defamatory reports on public officials unless the officials proved that the reports were knowingly false.
In Mapp v. Ohio (1961), the Court ruled that evidence obtained in violation of the 4th Amendment guarantee against unreasonable search and seizure must be excluded from use at state as well as federal trials. This "exclusionary rule" is written into American Samoa's constitution. In Gideon v. Wainwright (1963),the Court held states were required to appoint counsel for criminal defendants unable to pay their own attorneys' fees. In Miranda v. Arizona (1966), the Court held that before any questioning of suspects in police custody, the suspects must be informed of their right to remain silent, that anything they say may be used against them, and that they have the right to counsel.
In Griswold v. Connecticut (1965), the Court expanded the "right to privacy" by holding that a state unconstitutionally interfered with personal privacy in the marriage relationship when it prohibited anyone, including married couples, from using contraceptives. In Roe v. Wade (1973), the Court further expanded this right to privacy by leaving the decision whether to have an abortion entirely to a woman and her physician. In Cruzan v. Missouri (1990), the court ruled that a person had the right to refuse life-sustaining medical treatment.
These are but a tiny fraction of the important and relevant decisions the Supreme Court has rendered. Though the public does not always agree with its decisions, the Supreme Court's prominent place in American society cannot be diminished and thus the "First Monday in October" will continue to be a day worthy of a moment of celebration.
Do you think the O.J. Simpson jury made a mistake when it found him innocent?
Juries don't find people "innocent", they only determine under the laws whether a person is GUILTY beyond a reasonable doubt. I always think of "innocence" is a moral question, while guilt is a legal one. I've tried to avoid comment on whether I thought O.J. was GUILTY or not; though I don't think a single person I know hasn't ask me, as a lawyer, whether I thought he was GUILTY or not. I wasn't at the trial (though I did follow it closely), and cannot really say whether the jury correctly determined O.J. was not GUILTY. Under the law, it was up to the jury to determine whether he was GUILTY or not guilty and they made their choice.
Of course, GUILTY or not, the standard was GUILTY beyond a reasonable doubt, and the defense team (with the assistance of some at best inept police work) was successful in placing some doubt in the jurors minds whether O.J. was truly GUILTY. If the jurors felt in their hearts that O.J. was GUILTY, but the actions of the police placed a reasonable doubt in their minds, they were required to find him not guilty. It might not seem to be the fairest standard, but as the great jurist Sir William Blackstone once said (c.1765): "It is better that ten GUILTY persons escape than one innocent suffer."
Dear Brian: I understand they have a debtor's prison in Rarotonga. You can't be sent to jail for owing money in Samoa, can you?
Fortunately, or unfortunately, depending on your perspective, you cannot. The Bill of Rights of the American Samoa Constitution (Art. I, §9) provides: "There shall be no imprisonment for debt except in cases of fraud." Imprisonment for the fraud to which this section refers must be brought as a criminal action by my good buddies at the Attorney General's Office. Fraud in this context probably is more than borrowing money with no present intention or ability of paying it back, but don't count on that not being considered fraud. Oh, thanks for the tip concerning Rarotonga--I don't know if it is true but I'll make sure to bring plenty of traveler's checks when I visit!
As another year in paradise comes to an end, here are some of my law-related hopes for American Samoa 1997 edition:
1. All of the laws passed by the Fono and signed by the Governor are actually published and made available to the public (like they are suppose to be);
2. The Fono appoints a commission to consider revising and updating the laws as they relate to probate, corporations, commerce, consumer rights, insurance and others. The laws in these areas are hopelessly out-of-date and changes (some procedural, some substantive) are needed to bring them more in line with modern trends, while of course taking into account the effect of any changes on Samoan culture;
3. The opening of a branch of the High Court in the Western District (how about Pava'ia'a--near my office?);
4. Progress on the Courthouse revitalization. The current Court "warehouse" near the Pago Plaza is better than the dilapidated old-Courthouse in Fogotogo, but a remodeled Courthouse would be better than the "warehouse";
5. A change in the name of the Workmen's Compensation Commission to the Worker's Compensation Commission and a Worker's Compensation Commission which convenes on a more regular basis;
6. The upper limit for Small Claims Court be raised from $1,000 to $3,000. The old limit is out-of-date and those individuals looking to recover relatively small sums $1,000-$3,000 should not have to hire and pay an attorney to do it for them.
7. The upper limit for District Court be raised from $5,000 to $10,000. Hopefully, this would help clear the High Court calendar a bit.
8. Some additional thought to federal court jurisdiction in American Samoa--but on an all-or-nothing basis. None of this federal court access for ASG matters but not for private individuals and/or businesses (which was the last proposal);
9. The funding and appointment of an Administrative Law Judge;
10. I stop using so many parentheticals (if that is possible)(I don't think it is).
HAPPY NEW YEAR.
EVIL WEEVILS -- Termites eating your house? Ants carting off all your food? Cockroaches so big they scare your dog? Who are you going to call? An exterminator? Think again. Call your trusty lawyer and sue those pesky bugs right out of existence.
I present this novel piece of advice after reviewing a new legal book, Famous Trials: Cases That Made History by Frank McLynn (© 1995 Andromeda Oxford Ltd.). Though this collection of fascinating cases somehow does not include any of my trials--maybe in the next edition--it does chronicle and summarize in an entertaining manner a wide selection of, well, famous trials from The High Priest Caiaphas v. Jesus of Nazareth to the Scopes monkey trial of 1925 to the Pentagon Papers trial of 1973. The case of St. Julien Residents v. Local Weevils of 1587, however, caught my attention.
According to the author, "Bringing animals to justice for 'crimes' was standard procedure in Europe for many centuries. Animals accused of homicide were tried before secular [civil] tribunals and condemned to death, exactly as a human being would be. Guilty animals (often dressed in human clothes) were publicly hanged, burned at the stake, or whipped and tortured. Such punishment was evidently not intended as a deterrent, since nobody brought other animals to witness the fate of their fellows. Pigs most frequently came before secular courts, and records of 34 cases have been discovered in local archives in which pigs were executed for the murder of children.
"Most of the animal trials heard in ecclesiastical [church] courts involved hordes of rodents or insects (rates, mice, locusts or weevils) accused of destroying property. The pests were necessarily tried in absentia, and the court would prescribe a religious means of dealing with them--normally a solemn curse that declared them an anathema.
"The notion of animals as criminals survived until the end of the 19th century. The last known such trial was a Swiss case in 1906, in which two men and a dog were tried for robbing and killing a man. The men were given life sentences, but the dog was condemned to death." Where's the justice in that?
In the St. Julien Residents v. Local Weevils case, the vineyards of a small French town were under attack by a horde of evil weevils--bugs--and the residents sued for the bugs' removal. You'd expect a quick trial, but the bugs were appointed defense counsel (a job our public defenders probably would not want to be added to their duties), who was successful in delaying the proceedings and apparently securing the court's permission to find the evil weevils a new home. Unfortunately, the ultimate outcome of the case is not known, as the archives containing the result were long ago destroyed.
This and the other interesting legal tales in Famous Trials are available for review on the coffee table in my office. Stop by if you're interested in learning a little legal history. Oh, I've checked the statutes and laws, but have been unable to find any precedent for suing Samoan bugs out of existence. Pay my hourly rate, however, and I'll pursue the case for anyone interested (absolutely no guarantees of success however).
Dear Brian: My fiancee and I waited until later in life to get married. I have a successful career and somewhat substantial assets. I'm not planning on it, but my family in the States says I should take some precautions just in case. Should I have a prenuptial agreement in the remote chance things don't work out?
The key to any good relationship is communication and understanding. For example, my wife likes to communicate her understanding of our marriage to me on occasion: "what's hers is hers and what's mine is hers." We do not have a prenuptial agreement, but neither of us came into the relationship with substantial assets.
Besides its historic and religious underpinnings, marriage is a legal relationship. If you were buying a car, you would want to know in advance what happens if it breaks down. The same should be true of a marriage. A premarital agreement serves this purpose by listing the parties' separate assets and deciding at a stage when the parties are on good terms how assets should be fairly divided upon dissolution (divorce). I've even heard of some prenuptial agreements which list each spouses' responsibilities as to taking out the garbage, doing the dishes and other "personal" items (though I doubt these sections are legally enforceable).
Many states have adopted the Uniform Premarital Agreement Act which lays out the permissible scope and enforceability of such agreements. Samoa hasn't, but a premarital agreement probably would be legally valid in our courts. As upon dissolution the court will divide the parties' assets in an equitable--fair--manner, a valid premarital agreement would assist the court by letting it know what the parties thought was fair at the outset--before problems arose--and what property each party brought into the marriage. My advice is to do it.
Dear Brian: I recently purchased a case of milk after seeing this ad in the newspaper: "buy one case of ---- milk and get a free raffle ticket to win a $100 shopping spree. Drawing every Friday." On the next Saturday, I was told they had indefinitely postponed the raffle because they had only sold one ticket (mine) and had to sell 14 before they could have the drawing. Is this legal?
You were robbed, sue 'em. Every wonder why companies in their "giveaway" contests always include "no purchase necessary to enter or win" language in the small print? It's because if they don't they've formed a contract with every person who bought their product hoping to win the prize and if they do not follow their rules as to the contest, then they have breached their contract with each and every purchaser.
With this language included, the law considers these companies to only be expressing an intent to give a gift in these giveaway contests and this intention (to give a gift) can be revoked right up until the time possession of the "gift" passes from the company to the "winner" of the contest.
If this milk contest did not use the "magic words" in their advertisement, then you have a contract with them and they breached it by not holding the drawing as promised. The fact their contest was not as popular as they hoped is their problem. As the only participant, you'd be the winner and your damages are easy to calculate--$100 shopping spree! Smells like Small Claims Court to me.
Additionally, in most jurisdictions, games or contests such as this are heavily regulated by consumer protection laws. As I've noted a number of times in the past, American Samoa's consumer protection statutes are in dire need of updating. However, the Attorney General's Office does have a Consumer Protection Bureau and it might pay to give them a call to complain.
Dear Brian: I am going back to college in the States for my Junior year. When I do research for papers, sometimes I see documents with copyright warnings and sometimes I don't. Can I get in trouble if I copy either?
When an author fixes an original work to a tangible medium of expression (legalese for things like a piece of paper), copyright rights automatically arise regardless of whether there is a notation of federal registration (®). For example, I have copyright rights in this column. If you copy someone else's original work without permission, you have violated their copyright rights and could be liable for actual or statutory damages--as high as $100,000 for willful infringement.
Don't worry, the copyright laws provide an exception for you. The "fair use" provision (17 U.S.C.§107) allows reproduction of copyrighted materials for such things as news reporting, teaching, scholarship and research. That's you. Remember however that all schools have rules against plagiarism. If you slavishly copy someone's words, give them credit by footnote or the like. Oh, and if I remember one thing from college it's this: stealing from one author is plagiarism, but stealing from many is research.
Dear Brian: I have a unique name for my product (_______) and I want to prevent others from using it. What can I do?
First, stop telling people your unique name. Not all people are as honest and trustworthy as we lawyers are, and some unsavory characters may misappropriate it.
Second, secure a trademark. In legalese, a "trademark" is a distinctive mark, word, design, picture or arrangement that a seller uses in conjunction with a product which tends to cause consumers to identify the product with the producer (whew, take a breath). It's just a unique name people identify with a particular producer, such as CocaCola™ soda, Big Mac™ hamburgers (as opposed to computers), Ben & Jerry's™ ice cream--can you tell I'm heading to the States for a quick vacation?!?
It does have to be unique and distinctive, as opposed to "generic" or merely "descriptive" such as "cellular" for phones or "aspirin" for pain reliever. Though once upon a time Aspirin was actually a trademark, over time it lost its unique quality and came to represent the product itself, thus becoming "generic" and losing trademark protection.
Securing a local trademark is easy, even before you start using it. Under A.S.C.A. §27.0302, all you need to do is file an application with the Territorial Registrar's Office declaring that no one else is using the mark and attaching 2 copies of it or a description of it. The fee is only $10 and once approved your mark is registered and kept in a book at the TR--which does not contain very many at this point. You get a certificate of registration, and the mark is valid throughout the Territory for 10 years, subject to renewal.
Third, start using your trademark within 1 year. If you don't, the mark is subject to revocation if challenged by someone else wanting to use it. A.S.C.A. §27.0304-06. Once registered, you own the trademark, can prevent others from using it, and can recovery damages from those who do use it. [Note: there is a separate federal trademark law and international treaties which apply depending on where you product is sold]. Oh, once you have a trademark registered, you can protect it from misappropriation and from becoming generic by placing the "™" symbol by it (option-2 on my Apple Macintosh™, who knows where on lesser computer systems).
Dear Brian: I operate a business which has fallen on tough times. Some of my creditors have obtained judgments against my business (a corporation)and are now trying to seize its assets. What can I do? Can I declare bankruptcy? Can these creditors take my personal assets?
Declaring bankruptcy in American Samoa is one thing you cannot do. There is no local statute providing for the legal remedy of bankruptcy, and there is no federal court in which to petition for bankruptcy pursuant to the federal statutes (which is an argument both for and against the extension of federal court jurisdiction to American Samoa).
As you've operated your business as a corporation, and if you haven't extended your personal guarantee to any of the corporate debt, your personal assets should be safe. One of the benefits of the corporate form is that the law considers the corporation a distinct entity (its own person if you will) which shields its owners from personal liability for its debts. Of course, this rule will only apply if the owners of the corporation have treated it as a distinct entity. This means keeping up the corporate records (annual meetings, boards of directors and officers), maintaining separate bank accounts, and a number of other steps. If you don't treat the corporation as a corporation, you (the owners) and your personal assets run the real risk of being held responsible for the corporate debts.
Assuming you've properly treated your business as a corporation, you can go to court and ask that you be given an opportunity to keep the business running while you pay the judgments over time. The court will want to know the extent of all the corporate assets and liabilities, and it may decide to allow a reasonable repayment schedule. The court is protective of debtors, but it does insist debtors live up to their responsibilities.
Whoa, wait a minute, I thought you said there was no bankruptcy in American Samoa. How is Samoa Packing declaring bankruptcy and what does it mean legally?
Ready to split hairs? Got one? Here we go: a person or company cannot file for bankruptcy in American Samoa, but orders from bankruptcy courts in the United States are enforceable here in American Samoa. Does it make sense? Not really, but that's the way it is for now unless federal jurisdiction is extended to American Samoa.
Bankruptcy simply means being unable to pay one's debts as they become due (a condition we are all familiar with at one time or another). In a traditional bankruptcy, the creditors seek to have a court declare such a person or company bankrupt and then they seize and sell (liquidate) assets. This is an involuntary, liquidation-type of bankruptcy.
Today, most bankruptcy filings for companies are of the voluntary, reorganization type under Chapter 11 of the Bankruptcy Act. As the continued operation of the company is more valuable than the sale of its individual assets, the company continues to run while it, as a whole, is sold to a third party. The funds from the sale are used to pay the creditors who have debts which were posted prior to the bankruptcy filing.
During the bankruptcy proceeding, the company is protected from its creditors by the "automatic stay" provisions of the Bankruptcy Act. While this stay is in place, the company cannot pay prior creditors nor can suits by or against the company proceed unless approved by the bankruptcy trustee--the person appointed by the bankruptcy court to oversee the operation of the company during the proceeding. As the company declaring voluntary bankruptcy has detailed their creditors to the trustee, the trustee will inform these creditors in writing of their rights and ask them to submit a claim to the eventual proceeds of the sale of the company.
In the local case, Van Camps Seafood Co., Inc., the parent company of VCS Samoa Packing Co. (a client, I should mention), has filed a voluntary petition for bankruptcy in the United States (San Diego) under Chapter 11. They will continue to operate while a buyer is located (and one is already lined up: Tri-Union). Prior creditors will be compensated through the trustee and out of the funds of the sale. Current creditors will be paid out of the operation of the business as usual; well, usual as possible.
Can "bankrupt" residents of American Samoa fly to say Hawaii, file for bankruptcy, and discharge (clear) their debts here and start anew? Good question. An individual would have to be a bona fide resident of the place under the jurisdiction of a bankruptcy court. In essence, you'd have to move to Hawaii to be able to accomplish this. Declaring bankruptcy also comes with a lot of baggage (destroys creditworthiness) and not all debts can be discharged through a bankruptcy proceeding (such as student loans). If you still are interested, contact an attorney of your choice to discuss the options.
Dear Brian: My employer fired me for no reason after I worked there for 2 years. Can I sue him?
Sure, you can sue. Of course, you'll lose, which always makes suing less attractive. Unless you have an employment contract which provides you can be terminated only "for cause", your employment relationship with your employer is "at will"--which means you serve at their will or whim. Your employer can terminate you for just about any reason.
Now, if the reason you were terminated is discriminatory in some manner, you may have a cause of action for wrongful termination pursuant to a variety of federal statutes. Discriminatory reasons are those based upon a person's gender, religion, national origin, age, or physical handicap. There are limited exceptions when an employer can base its employment decisions on these discriminatory factors, and the laws do not always apply to a particular business. Thus, if you believe one of these discriminatory reasons is behind your dismissal, your best bet (short of contacting an attorney) is to contact the Equal Employment Opportunity Commission for more information about your rights and remedies.
Dear Brian: Can a person lose their job just because they've been accused of a crime? I thought it was innocent until proven guilty?
Hey, wait a minute, didn't I already answer this question. Let me see ... yeah, here it is: September 6, 1996. Here's the question: "My ex-employer fired me for no reason after working there for 2 years. Can I sue?" Here's my astute answer: "Sure, you can sue. Of course, you'll lose which makes suing less attractive. Unless you have an employment contract which provides you can be terminated only 'for cause', your employment relationship with your employer is 'at will'--which means you serve at their will or whim. Your employer can terminate you for just about any reason." ... I also said some stuff about discriminatory reasons.
OK, I guess your question is a little different, but the answer is still the same. Innocent until proven guilty works great in a court of law, but unfortunately it seems to have no application in the court of public opinion. Being charged with a crime is one of those whimsical reasons your employer can fire you if you are an "at will" employee--it may not be loyal, but it is legal.
Now if there is a contract of employment involved--and thus you cam only be discharged for "good cause"--you get my favorite legal answer: "it depends." It depends on your contract of employment, which may be comprehensive enough to define what cause means in such a situation. Of course, if you are arrested for committing a crime against your employer, I'm pretty confident that would establish cause for terminating your employment contract.
Of course, outside the collective bargaining (union) contract situations, most contracts of employment are silent as to this issue. As such, the effect of an arrest on the performance of your job responsibilities would determine whether an employer has cause to fire you. If your arrest results in an inability to perform your duties (if you are in jail), your employer has cause to terminate your employment contract. If your arrest has no effect on your job, then it is less likely an employer would have cause to terminate your employment contract. The type of crime charged also plays a part (an arrest for bank robbery of Bank A would probably be cause to terminate the employment of a bank teller at Bank B).
Employers must take care, or else face suits for wrongful discharge. Many employers guard against this by placing contract employees charged with crimes on leave--in essence suspending their employment contracts--pending outcome of the criminal proceedings.
Dear Brian: Both my wife and I work, but have a child on the way. Neither of us wants to lose our jobs, but we want to spend the first few months of the child's life at home with him or her. Is there anything we can do legally?
As I mention whenever an employment-related question comes up, a lot depends on your employment status. If you are an at-will employee, you can loose you job for just about any reason--including taking time off to care for a newborn. However, if you employed pursuant to a contract, such as a collective bargaining agreement, you may have rights to such time off. My favorite answer--it depends.
However, all is not lost. Again, you can thank your federal government for something--here, the Family Medical Leave Act (29 U.S.C. 2601 for those who care). This Act requires employers to provide 12 work weeks per year of unpaid leave in certain situations (e.g. birth, adoption, serious health condition). Though this Act does apply in American Samoa, it only applies to those who employ more than 50 workers on any day. This cuts down on the number of businesses to which it could apply. There are also requirements for qualification, including length on job (basically 12 months), advanced notice to the employer, and medical certification of reason for time off (which is probably easy to establish in your case).
The Act is nice because it allows either spouse to take time off, and requires your employer to continue some benefits during your unpaid time off--such as continuing health insurance coverage. It also requires the employer to give you your old job back or a functional equivalent. I think it is a good piece of legislation, especially as it does not adversely affect small businesses who sometimes really can't afford to meet its requirements.
See if either of your employers comes within the Act. If not, you can always try another approach--ask nicely for the time off and appeal to your employers sense of family values.
Is it constitutional for an employer to require it's employees to work on their Sabbath, regardless if it is Sunday, Saturday, or another day of the week? How about employees whose religion requires prayer at certain times of the day--does the constitution require the employer to accommodate them?
Interesting and topical question which brings up a number of legal principles, two of which I'll address today. First, it is constitutional (whether it is legal is another question). "That can't be constitutional" is a refrain I often hear directed at private parties and one that is completely unwarranted.
A quick civics lesson. Those rights you have under the constitution (be it ours or the United States), such as freedom of the press, religion, assembly, apply against the government not private individuals.
If the government makes a law which infringes on one of these rights, then the question of constitutionality comes into play. If a private party prevents people from assembling on his or her property, or a book publisher chooses not to publish a certain book, that is their right and not a "constitutional" issue. Here, a private employer's failure to respect an individual's first amendment rights to religious freedom is not a constitutional violation.
However, if your question really was "is it legal for an employer to require it's employees to work on their Sabbath", then the answer is no (probably). The United States Congress, under their constitutional power to make laws affecting commerce, has passed the Civil Rights Act of 1964, and particularly Title VII of that Act, which applies to American Samoa and to employers of 15 or more employees. 42 U.S.C. §2000e-2. The requirements of this Act answer your question.
Title VII makes it an "unlawful employment practice" to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." Under Title VII, an employer must accommodate religious needs whenever possible and terminating an employee because they refuse to work on their religious holidays would seem to violate the Act.
Ready for the BIG loophole? An employer need not accommodate religious needs if doing so would subject the employer to "undue hardship". If the employer has sufficient advanced notice and the cost of accommodation is de minimis (very small) in terms of expense or efficiency, then there is no "undue hardship" in accommodating the religious needs. The burden is on the employer to demonstrate "undue hardship".
What does this mean on a practical level? Well, evaluating that for employers is why I get paid the big bucks (OK, medium-sized bucks), so I'm not giving it away for free. However, here are a couple of general examples--accommodating time for daily prayers, not undue hardship; accommodating religious holidays where "identical" substitute workers available, not undue hardship; accommodating extended paid leave for a religious mourning period where only a more expensive supervisor or premium part-time worker could act as substitute, undue hardship. You get the idea.
(1) Dear Brian: I sued and won a judgment against a person who doesn't have any assets in American Samoa, and who has left Samoa for the U.S. He does have a job and assets there. Can I enforce my Samoa judgment in the United States?
(2) Dear Brian: Can a civil judgment obtained in the United States be enforced in American Samoa?
Yes and yes. You can run (well, fly) either to or from American Samoa, but you cannot hide. American Samoa, and most states, have adopted the "Uniform Enforcement of Foreign Judgments Act" (A.S.C.A. §43.17). It allows an authenticated "foreign" judgment (foreign in this case meaning the United States and its other territories) to be filed with the High Court and enforced in the same manner as a judgment of our court. Upon filing, the High Court clerk is required to mail notice of the filing of the judgment to the debtor. It basically works the same way for judgments from American Samoa in U.S. courts. Challenges to the judgment can be raised just as in any other case, such as not having been made a party to the action from which the judgment arose, or that the judgment is not final (i.e. it is on appeal). Depending on the size of your Samoan judgment, contact either an attorney or collection agency in the place your debtor is located in the U.S. to discuss enforcing the judgment.
FYI!!! A particular high governmental official has requested I review some of American Samoa's traffic ordinances. Here's a few of the more prominent rules, all of which are located in Title 22 of the American Samoa Code:
¥Every driver, except for nonresident active duty military personnel and their dependents or nonresidents in the Territory for less than 30 days who possess a valid license from elsewhere, must possess a valid American Samoa driver's license.
¥You must possess your license whenever driving (though if you forget it and are stopped, you won't be convicted if you can produce your license at a later time).
¥You may only pass on the right if your vehicle remains on the pavement or main-traveled portion of the roadway (don't drive through someone's yard or a sidewalk).
¥You may only pass on the left ...
¥You must signal (either manually or with blinkers) 100 feet before stopping in the roadway to make a turn.
¥If a school bus is stopped with its light's flashing, no passing on either side of the road.
¥No coasting down hills, your vehicle must be in gear.
¥Vehicle headlights must be turned on between 1/2 hour after sunset and 1/2 hour before sunrise, during heavy rainstorms or other situations with limited visibility. Parking lights may only be on when a vehicle is parked, not while driving on the roadway (hence the name "parking lights").
¥If carrying a load which extends 4 feet or more beyond the bumper of your vehicle, you must stick a 16 square inch red flag on it. (I'm told the police are required to carry tape measurers so they presumably can tell the difference between 3'11" and 4'1").
¥Every occupant of a vehicle must wear a seat belt and small children (under 3-years-old) must be in a car seat.
¥If involved in an accident causing injury or more than $100 in property damage, you must render aid to the injured, inform the police, and stay at the scene until the police arrive, if possible.
¥Every car must be insured at a minimum level. However, these minimum levels are very low and everyone should carry as much additional liability insurance as they can afford, and then some. You'll be personally liable for damages which exceed your insurance coverage.
¥Extra lights on vehicles (such as in back windows, or lighting the undercarriage) are probably illegal.
¥DON'T DRINK AND DRIVE, AT ALL. PERIOD.
The rules can be avoided in "emergency" situations when following them would be dangerous. Oh, emergency vehicle operators (police, ambulance, fire) are not immune from the rules of the road, unless they are responding to an emergency. If you see one violating the rules (such as the seat belt law), note the license plate of the vehicle, the time of day and report it. I'm sure these government officials are interested in setting a good example and won't mind being reminded when they're not.
Dear Brian: I understand Hawaii has just passed a law making it illegal to ride in the back of a pickup truck. What is the law in American Samoa about this? The way people stand and sit on the railing of pickup trucks here seems dangerous.
No kidding. I even had clients in from Japan this week and they were surprised to see people riding in the back of pickup trucks because it is (A) illegal in their country, and (B) well, dangerous. Of course, it really could not be illegal here in Samoa as many people rely on others for their transportation needs and it just so happens that pickup trucks in Samoa, with their open backs, are only slightly outnumbered by the palm trees.
Here, the only laws applicable are the mandatory use of seat belts or restraining devices for drivers, front-seat passengers, and children under 4-years-old. A.S.C.A. §§22.0332; .0333. To say these laws are fully and fairly, rather than selectively, enforced is a matter of some debate. No law concerning riding, standing or sitting on the railing of pickup trucks.
In fact, though Hawaii has passed the prohibition on riding in the back of pickup trucks, the state has left it to individual counties to decide whether to enforce it. I suspect (well, I read in the Hawaii newspapers) that the more rural counties will not enforce it while the more urban ones will--the populations of the more rural counties presumably more dependent on others for their transportation needs.
Though I do not necessarily want to see it illegal here in Samoa, I would like to see a law making it a traffic offense for any person to stand in the back, or sit on the railing, of a moving pickup truck, no matter how cool these people think they look when they do it. It could be affectionately known as the "Butts in the Bed" Act--"any person riding in the open back of a moving pickup-type truck must have their backsides planted on the bed of the truck" or something like that. !!Conflict alert--I proudly represent clients who would benefit by such a law, but it still is a good idea!!
What exactly is "no-fault" divorce? Does it apply in American Samoa or does someone have to be at "fault" to get a divorce?
Until recently, there were only 5 grounds--all with one parties' fault as their foundation--upon which a couple could dissolve their marriage in Samoa: adultery, cruelty, desertion for 6 months, jail term of more than 10 years, or 5 years separation.
Now that the trend in the United States is to make divorce more difficult to obtain (especially where children are involved), American Samoa has finally made it easier. Public Law No. 24-11, passed earlier this year, amended A.S.C.A. §42.0202 to add "irreconcilable differences" as a ground for divorce. In essence, this "no fault" provision allows couples to dissolve marriages which have simply not worked out, irrespective of whose "fault" it is. Rather than forcing a particular cases into the "fault" categories when it does not belong, and thus perhaps wrongfully labeling one of the parties as an adulterer or the perpetrator of cruelty simply to expedite an appropriate divorce, the statute now reflects the realities of modern marriages: sometimes they just don't work.
I am a little confused. I thought a person could only be forced to trial once. However, O.J. Simpson is going to trial again, those police officers who beat up Rodney King were found not guilty then convicted at another trial, and I always hear about someone going to trial again after the jury couldn't decide if they were guilty--like the Menendez brothers. Isn't there some rule against this?
That would be the Double Jeopardy Clause, which provides: "No person shall be subject for the same offense to be twice put in jeopardy of life or liberty." It allows a government only one full opportunity to convince a jury to convict a person of a crime. If they can't, and the person is found not guilty, the government cannot ever try that person again for the same crime.
The cases you cite are good examples of something I've mentioned before and will mention again: every law is riddled with exceptions. As to O.J., the Double Jeopardy Clause does not apply to civil proceedings because a person's "life and liberty" is not in jeopardy in the civil setting. All O.J. stands to lose is what money he has left.
As to the Rodney King police officers, the Double Jeopardy Clause only prevents the same government from trying a person twice; it does not prevent separate governments ("separate sovereigns" is the legal term) from trying one person for the same crime in each jurisdiction. In the King case, the state government was unable to convince a jury to convict the police officers of a crime, so the federal government stepped in and did just that (and to a lesser extent, the charges were arguably different: assault in the state prosecution, violation of Rodney King's civil rights in the federal prosecution).
As to "mistrial" situations such as the Menendez brothers (where the jury could not render a verdict because they could not agree), the legal theory is that the government has not had one full opportunity to convince a jury to convict them. In essence, the protection of the Double Jeopardy Clause only apply once the jury has rendered a verdict; either guilty or not guilty. Without a verdict, the law pretends a "second" trial is merely a continuation of the first. I've seen cases go through 3 or 4 mistrials before finally reaching a conclusion, allowing the government a "second (and third) bite at the apple" to correct their mistakes at previous trials. There is a debate whether this last non-application of the Double Jeopardy Clause is fair, but it is the law.
Dear Brian: My question concerns the Tradesmen Board. ASCA 31.0705(c) states "This chapter shall apply to tradesmen in the employ of the government of American Samoa." If a tradesman (as defined) does not work for or perform any services for the ASG, is that tradesman exempt from obtaining a tradesmen's certificate?
Good question (I didn't even know there was a "Tradesmen Board"). The answer, though, is NO. ASCA 31.0705 provides as follows:
(a) This chapter shall pertain to all individuals desiring to obtain certificates as carpenters, plumbers, painters, electricians, masons, millwrights, welders, tinsmiths, tile setters, cabinet makers, radio/tv repairmen, refrigeration airconditioning repairmen, draftsmen, auto mechanics, sheet-metal men and such other trades as the board may, by rule or regulation, from time to time determine should be within the purview of this chapter. This chapter applies to those tradesmen who wish to perform services for hire on an hourly, daily or other basis, including a contractual agreement, but does not apply to laborers working under the supervision of qualified tradesmen or tradesmen contractors.
(b) All specialty contractors or g
