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Appeals court denies Fagaima Milovale’s recusal motion and objection

Fagaima Milovale’s motion to recuse two Associate Justices — John Ward and Elvis Pila Patea — from the appellate panel to hear his appeal has been denied by the Appellate court. Also denied was Fagaima’s objection to Assistant Attorney General Vincent Kruse representing the government, as it is his father’s decision that is being challenged in the appellate court. Vincent’s father is Chief Justice Michael Kruse.

The Appellate Panel of the court are Associate Justices Lyle Richmond and John Ward, Acting Associate Justice Elvis Pila Patea, Associate Judges Suapaia Pereira and Fa'amausili Pomele.

Fagaima’s recusal motion and objection came before the Appellate court, after a July 2009 decision of the High Court Land and Titles Division, which ruled that Fagaima’s claim challenging the transfer of former Fagaima Communal lands to the government is time-barred by the Statute of Limitations.

Fagaima, through his lawyer Charles Alailima, filed a motion for reconsideration in January 2010 — however it was denied by the Trial Division of the High Court,where Chief Justice Michael Kruse presided.

Alailima then filed an appeal, however his client was surprised to see that representing the government was Ass’t AG Vincent Kruse, who is the son of the Chief Justice; which led to Alailima immediately objecting.

On the matter of recusal, Alailima’s motion was filed last month. It notes that the sitting of Acting Associate Justice Elvis Peter Patea and Associate Justice John Ward would create an appearance of impropriety due to the fact that the appellate panel of judges, who are subordinates to the Chief Justice, would be sitting in to review the Chief Justice’s court decisions.

A hearing for the recusal motion and objection was held on Monday of this week.


Alailima argued the appointment of Ass’t AG Kruse to handle the case has the appearance of impropriety and potential conflict of interest under Rule 1.7 of the Model Codes of Conduct, noting the Ass’t AG’s connection to the Chief Justice, whose decision is under appeal before the court, and his last minute appearance to handle the appeal — which was a surprise to his client.

Alailima believes that Ass’t AG Kruse has a personal interest, and therefore he should not represent the ASG in this matter.

Justice Ward responded to Alailima that it’s pretty much speculation on his part.

Ward asked Alailima “As a matter of law, what right do you have as an attorney to disqualify another party from selecting an attorney they choose? 

“He (Ass’t AG Kruse) is admitted to the bar as you are, Ward stated. “Are you prohibited from handling a case on appeal that your sister as administrative law judge pro tempore might decide?” asked Ward, who added that they have only a limited number of people in which to handle all of these cases.

Alailima said this could be remedied with Kruse stepping down from handling the appeal and letting some other assistant attorney general handle the appeal, saying that this case has gone through nine different lawyers since it began.

He said, however, if Asst. A.G. Kruse had handled this case from the beginning, and was the only one who had knowledge of this issue, and was the one who wrote the appeal— then, maybe.

Justice Ward replied that “if Kruse wasn’t representing the Government, and he had gone into private practice and had then been retained at the last moment by a private party to represent them on appeal... do you see? Again, you're asking us to look at this just within the context of this particular case, but these sorts of decisions, because we are obliged, Counsel, have broader application as to who is going to be disqualified. What if the AG got snarky and said "Okay, I'm going to go with private counsel, specially appointed to assist"? And then he selected Counsel Uiagalelei to be second chair. Do you see where all of this can go, Counselor? The panel can be decided by appearances, rather than fulfilling duty.”

Justice Patea asked “What personal interest is there in this case that poses a substantial risk of him (Kruse) representing the ASG.?”

Alailima replied the personal interest is the independence of his consultation; that is, Ass’t AG Kruse’s representation of the government and his personal interest — his relationship to his father the Chief Justice.

As such, Kruse may not be able to give independent consultation and advice to the Government with respect to things like working something out with the family, according to Alailima.

In reply, Ass’t AG Kruse told the court the burden is on the appellant to show why the appellee's counsel must be disqualified.

“The appellant has cited no case law, no factual basis for what that appearance of impropriety is and how it should be dealt with by the Court. He said the appellant argument regarding the appearance of impropriety is based solely on assumptions.

“The appellant has stated that I am related to the Chief Justice, who is my father, but the appellant has in no way espoused how that relationship results in a personal interest, which causes a conflict of interest.”

In conclusion, he said, the burden is on the appellant to show there is an appearance of impropriety with his being on this case or that there is a conflict of interest that requires his disqualification from this case. 



With Alailima’s motion of recusal, Ass’t AG Kruse said the government feels an obligation to point out the timing of this motion, saying this appeal has been pending for approximately two years and given the current makeup of the appellate panel and how it is composed, the appellant is aware that there are only four legal justices on island.

Kruse went on to say this is nothing more than a strategic move to delay this case.

“As the appellant is aware, if the judges were to recuse themselves, that would require bringing off-island justices to hear this case, which would involve possible lengthy reorganization in order to bring justices down.

“The appellant has had two years to make that case and has not made that case until now.”

Alailima said to remedy this matter, the recusal should be put into affect, and an appellate panel brought down, as has been done in the past.

“The Interior did set up a structure which would allow at least some independent review from off island”, said Alailima.

Ward said while the court appreciates the wonderful Ninth Circuit individuals who came to the Territory, as a result, the court also had decisions being made from Ninth Circuit individuals, trained and skilled and experienced in federal law, coming down and trying in a week's time to come up to speed with local statutes, local case law, and make a decision.

“That's part of the reason why, in our appellate decisions, you have cases kind of bouncing all around instead of a good ‘stare deices’ basis that goes with logical progression so private counsel know what the law is, and trial courts know what the law is,” said Ward.

(’Stare deices’ —Latin for "stand by the decision"— is a legal phrase referring to the obligation of courts to honor past precedents.)

After a short recess, Justice Ward (who was nominated by the panel to make the announcement) said they've listened carefully to the arguments of counsel and have considered the grounds case law that's been provided. 

"We are not persuaded Assistant Attorney General Kruse should be disqualified from arguing the Government's case in this matter, nor are we persuaded by the arguments that there can be a reasonable belief that this duly-appointed appellate panel cannot fairly and impartially hear and decide the legal issues presented on review", said Justice Ward. 

Read the Samoan language version of this story in Le Lali section.