OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2011-2012)

AMERICAN SAMOA VETERANS ASSOCIATION,
Appellant,

v.

AMERICAN SAMOA GOVERNMENT,
Appellee.

___________________________________
High Court of American Samoa
Appellate Division

AP No. 08-11

April 12, 2012

[1] Pursuant to A.C.R. 8, a motion for a stay of the Trial Division’s judgment or order “...may be made to and considered by a single justice of the appellate division.” In addition, A.C.R. 27(c) empowers a single justice of the Appellate Division to entertain and grant or deny any request for relief properly sought by motion, “except that a single justice...may not dismiss or otherwise determine an appeal....” Thus, a motion for a stay can properly be heard before a single justice, as the granting of a stay does not dismiss or determine an appeal, and A.C.R. 8 specifically allows a single justice to hear and decide a motion for a stay. 

[2] Pending the hearing and determination of an appeal, execution of the High Court’s final judgment or order shall not be stayed unless the Appellate Division orders a stay for cause shown. A.S.C.A. §43.0803. The court’s discretion to grant a stay should be exercised only if cause is shown. A court should not automatically or casually grant a stay of judgment pending appeal. The moving party bears the burden of showing cause as to why a judgment should be stayed. 

[3] To show cause in a motion for stay pending appeal, a moving party has the burden to produce evidence and pinpoint which portions of the record come to bear on the court’s decision-making process in the granting of a stay. Indeed, the movant is required to “show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant.” A.C.R. 8.

[4] A party moving for a motion for stay pending appeal does not meet its show-cause burden when it files only: (1) a motion that generalizes and abstains from pinpointing or citing relevant portions of the record that would assist the court in its stay-analysis; and (2) a lone, conclusory affidavit devoid of factual details.

[5] The party moving for a stay pending appeal who presents a single, conclusory affidavit, without sworn statements, or portions of the record as are relevant has woefully failed in its burden to show cause. The court will not scour the record for the moving party’s benefit; it the movant’s burden to do so. 

[6] A motion for stay pending appeal that does not show cause at the onset as to why a stay should issue, supported by specific portions of the record and sworn statements of a non-conclusory nature, will not trigger the likelihood-of-success and balance-of-equities analysis normally undertaken when evaluating motions for stay; the court will simply deny such a deficient motion. 

Before: PATEA,* Acting Associate Justice.

Counsel: 	For Appellant, Mark F. Ude. 
For Appellee, Marian M. Rapoza, Assistant Attorney General.

ORDER DENYING APPLICATION FOR STAY

BACKGROUND

The Trial Division issued Writs of Restitution on October 20, 2011 for certain government lands in the Tafuna area that the American Samoa Government (“ASG”) leased to the American Samoan Veterans Association (“ASVA”) sometime in the late 1970s. Appellant ASVA contends that the Writs were improperly given and filed a motion to stay the Writs in the lower court. After its denial, and ASVA’s subsequent appeal, ASVA filed another motion for stay (styled “Application by Appellant/Defendant for a Stay of the Writs of Restitution Pending Appeal”) before the Appellate Division on February 28, 2012. [**2**]

[1] Pursuant to A.C.R. 8, a motion for a stay of the judgment or order of the trial division “...may be made to and considered by a single justice of the appellate division.” In addition, A.C.R. 27(c) empowers a single justice of the Appellate Division to entertain and grant or deny any request for relief properly sought by motion, “except that a single justice...may not dismiss or otherwise determine an appeal....” Thus, a motion for a stay can properly be heard before a single justice, as the granting of a stay does not dismiss or determine an appeal; and A.C.R. 8 specifically allows a single justice to hear and decide a motion for a stay. Accordingly, this matter properly came on for hearing before this single-justice panel on April 5, 2012.

DISCUSSION

[2, 3] “Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the Appellate...Division...orders a stay for cause shown....” A.S.C.A. §43.0803 (emphasis added). A court should not automatically or casually grant a stay of judgment pending appeal. Alamoana & Yu-Tong Co. v. Am. Samoa Gov’t, 4 A.S.R.3d 3, 6 (App. Div. 2000). The court’s discretion to grant a stay should be exercised only if cause is shown. Id. (citing A.S.C.A. §43.0803; Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990)). The moving party bears the burden of showing cause as to why a judgment should be stayed. Lutali v. Foster, 24 A.S.R.2d 81, 83 (Trial Div. 1993) (citing A.S.C.A. § [**3**] 43.0803). The definition of “show cause” is “[t]o produce a satisfactory explanation or excuse, usually in connection with a motion or application to a court.” Black’s Law Dictionary 1413 (8th ed. 2004) (emphasis added). Therefore, to show cause, a moving party has the burden to produce evidence and pinpoint which portions of the record come to bear on this Court’s decision-making process in the granting of a stay. Indeed, the movant is required to “show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant.” A.C.R. 8.

[4] ASVA’s motion for a stay was accompanied by a single affidavit: that of Lauifi Tau’ili’ili, ASVA President. The affidavit, couched for the most part in conclusory terms and lacking in factual details, asserts, inter alia, that ASVA has a “lease” that expires in 2017, that ASVA will be irreparably harmed in its fundraising activities, and that an unrelated appeal pending before the Appellate Division clouds ASG’s “title to the property.” No other sworn statements were submitted. The motion itself generalizes and refrains from pinpointing or citing portions of the record that would assist this Court in its analysis. Moreover, not a single part of the record was filed with the motion. In short, ASVA’s motion is grossly deficient. [**4**]

[5] On the date of the hearing, ASVA’s counsel presented arguments – but produced no other affidavits, no other sworn statements, and absolutely no parts of the record as are relevant. ASVA had over 5 weeks from the date it filed its motion for stay (“Application”) on February 28, 2012 to prepare for the hearing that finally took place on April 5, 2012. The utter failure to produce non-conclusory affidavits or other sworn statements or relevant portions of the record leads to one conclusion: ASVA has woefully failed in its burden to produce evidence, to show cause. And this Court will not scour the record to cull the documents necessary to cure ASVA’s failure.

ORDER

[6] ASVA’s motion for a stay is grossly deficient; therefore, the motion does not trigger the likelihood-of-success and balance-of-equities analysis normally undertaken when evaluating motions for a stay. See Alamoana & Yu-Tong Co., 4 A.S.R.3d at 6 (discussing the test on a motion for stay). Accordingly, having failed in its burden to show cause, ASVA’s “Application” for a Stay is denied.

It is so ordered.