CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, PETITIONER V. DONALD P. HODEL, SECRETARY OF THE INTERIOR, ET AL. No. 87-1332 In the Supreme Court of the United States October Term, 1987 On Petition For A Writ Of Certioria To The United States Court Of Appeals For The District Of Columbia Circuit BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-28a) is reported at 830 F.2d 374. The opinion of the district court (Pet. App. 30a-66a) is reported at 637 F. Supp. 1398. The opinion of the High Court of American Samoa, Appellate Division in Reid v. Puailoa, AP Nos. 14-82, 15-82, and 16-82 (Pet. App. 153a-170a) is reported at 1 Am. Samoa 2d 85. The opinion of the same court on motion for relief from the judgment (Pet. App. 171a-176a) is apparently not reported. The opinion of the same court in Nouata v. Pasene, AP No. 7-79 (Pet. App. 117a-137a) is reported at 1 Am. Samoa 2d 25. Other relevant opinions of the Samoan courts are unreported but are reproduced in the appendix to the petition for a writ of certiorari. JURISDICTION The judgment of the court of appeals (Pet. App. 29a) was entered on October 9, 1987. The petition for a writ of certiorari was filed on February 6, 1988, pursuant to an extension of time to and including that date granted on December 11, 1987, by the Chief Justice. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's constitutional rights were vilated by the absence of direct Article III court review of an American Samoan court decision, when petitioner obtained review of its federal claims in the district court and the court of appeals by bringing suit against the Secretary of the Interior. 2. Whether the Fifth Amendment's due process or takings clauses were violated when the Samoan High Court determined that its two prior decisions involving a land dispute had not settled the issue of title to the land and that the decisions therefore were not res judicata on that issue. 3. Whether the court of appeals erred in interpreting Samoan High Court decision as resting on several alternative grounds, so that it need not reach the question of the constitutionality of an American Samoa Code provision that limits alienation of Samoan land to persons of Samoan blood. STATEMENT 1. This case arose from a dispute over title to 300 acres in American Samoa. The land (plus 60 additional acres), called "Malaeimi," was leased to petitioner in 1906 by the chief, or "matai," of the extended Samoan Puailoa family. When the matai died in 1929, a dispute arose over who would become the new matai. In 1931, the Samoan High Court ruled, in Nouata v. Pasene (Nouata I) (Pet. App. 68a-71a), that Nouata rather than Pasene would become the matai. In the same ruling, the court also considered who should receive the rents under the lease, although no pleading had been filed on that question and Salataima, the widow of the late matai, was not a party to the case (id. at 120a). The court ruled that "that part of Malaeimi that is leased to the Mormon Missionaries is the property of (Salataima) and that she should have during her lifetime the rents" (id. at 71a). /1/ The Puailoa family unsucessfully protested the ruling. /2/ In 1944, petitioner renewed the lease from Salataima. In 1953, petitioner purported to purchase the land from her. If the land was communal land of the Puailoa family, it could not be sold without the family's consent, which was not obtained. In 1978, the Pualiloa family moved to set aside Nouata I pursuant to Fed.R.Civ.P.60(b) (Pet. App. 103a). The trial division observed that the family claimed in essence that the Nouata I court lacked jurisdiction. The court found that claim supported by the facts that Nouata I was a "matai title dispute," that no pleadings concerning the land dispute had been filed in that case, that the family could not represent its interest in the land dispute until after the new matai had been designated at the end of the case, and that Salataima herself was not even a party to the case (id. at 105a). Despite those defects in Nouata I, the trial division concluded (id. at 106a-116a) that the family's motion for relief from Nouata I was not timely. The appellate division affirmed, Nouata v. Pasene (Nouata II) (Pet. App. 117a-136a), in an opinion by then-Judge Kennedy, sitting by designation. The court concluded first that Rule 60(b)(4) was not applicable because Nouata I was not void, the Puailoa family having sufficiently understood that the land question was to be addressed in Nouata I along with the matai question. The court then ruled that the family's Rule 60(b) motion for relief from Nouata I was untimely. The ruling was expressly limited, however, to refusing to reopen Nouata I. The court stated: "We intimate no views as to the interpretation of the 1931 decision or its bearing on the ultimate question of title, only that it is valid as to these parties." Pet. App. 136a. 2. Litigation over title was then initiated by petitioner's filing of a trepass action against members of the Puailoa family. The lands and titles division ruled against petitioner in 1982 (Pet. App. 138a-152a). Based on several cases involving Malaeimi, including one from 1932 in which the same Chief Justice of the High Court who rendered the 1931 decision in Nouata I expressed his view that Malaeimi was communal land, /3/ the court ruled that the land was in fact communal at the time of the death of the matai in 1929 (id. at 142a-147a). The division then concluded that the confusing language of Nouata I, read in light of the other decisions, should be construed as having awarded only a leasehold interest in rents to Salataima, who therefore did not validly pass title in 1945 (id. at 147a-149a). /4/ The High Court affirmed that holding (Reid), in a per curiam opinion joined by all five judges, including the two Article III judges (Judge King and Judge Wilkins) who sat by designation (Pet. App. 153a-170a). The court concluded (id. at 156a-161a), upon reviewing the background of Samoan land law and the cases relied on by the lower court, that the lands and titles division had not erred in holding both that the land in question was communal land and that Nouata I had awarded only an interest in rents and not title to Salataima. The court also observed that the Nouata II decision was not to the contrary: that decision "pointed out that it was not interpreting the 1931 decision and indeed it could not do so" (id. at 162a). As for petitioner's alternative claim to title based on adverse possession, the court indicated that petitioner had not occupied the land in question for the required 30 years (id. at 162a-163a) and that communal land, in any event, cannot be obtained by adverse possession (id. at 162a-163a & n.1). /5/ Upon petitioner's motion for relief from the judgment, the High Court reaffirmed its ruling (Pet. App. 171a-178a). It elaborated, in particular, on its rejection of petitioner's claim to the land by adverse possession. It construed the Samoan adverse-possession legislation as not permitting adverse possession of Samoan land by a foreign corporation (id. at 175a). In any event, the court concluded, petitioner failed to meet the requirement of "'(a)ctual, open, notorious, hostile, exclusive and continuous occupancy'" (id. at 175a n.2 (quoting adverse-possession statute)), since there was ample evidence that Samoan families have been asserting their claims to the land since 1931 and have been physically present on the land (id. at 175a). Petitioner requested that the Secretary of the Interior of the United States review the case pursuant to 48 U.S.C. 1661 and Exec. Order No. 10,264, 3 C.F.R. 765 (1949-1953) comp.). The Secretary declined to reverse the decision, because there was no clear judicial abuse of discretion and because a reversal would have detracted from the policy of fostering Samoan self-governance (Pet. App. 38a). 3. Petitioner then brought this action against the Secretary in the United States District Court for the District of Columbia, attacking the constitutionality of the Secretary's refusal to reverse the High Court. /6/ Petitioner alleged that (1) the Reid decision constituted a taking of property because it so departed from earlier rulings, (2) it violated petitioner's due process rights because it failed to respect res judicata, (3) it denied equal protection by relying on the Samoan Code provision barring alienation of land to persons of less than %50 Samoan blood (Am. Samoa Code Ann. Section 37.0204(b)), and (4) petitioner was unconstitutionally denied direct access to an Article III court for review of its federal claims. The district court rejected all of petitioner's claims and dismissed the suit (Pet. App. 30a-67a). The court rejected petitioner's "taking" argument (Pet. App. 30a-67a). /7/ The court rejected petitioner's "taking" argument (Pet. App. 41a-45a) because accepting the argument would transform every judicially resolved title dispute between private parties into a federal constitutional case. The court rejected the res judicata/due-process argument on several grounds (assuming that an arbitrary refusal to follow res judicata principles could violate due process): first, the Samoan court's ruling that Nouata I and Nouata II were not res judicata on the title question must be respected under 28 U.S.C. 1738 (Pet. App. 46a-47a); second, even if the Samoan court was wrong, that mere legal error would not be due process violation because the procedures in the Samoan court were entirely fair (id. at 47a-49a); third, the Samoan court's ruling on the res judicata issue was in fact a reasonable effort to interpret the prior rulings and was not arbitrary, clearly erroneous, or an abuse of discretion (id. at 49a-51a). The court next ruled that petitioner's equal protection attack on the land-alienation law need not be addressed because the other bases for the High Court's decision -- notably, that Salataima did not have title to the land in question and that petitioner's alleged adverse possession had not in fact been shown to be exclusive -- were adequate and independent grounds for the judgment (id. at 51a-55a). Finally, the court held that non-Article III territorial courts like those in Samoa have long been held constitutional under Article IV (id. at 58a-61a), /8/ that the absence of "direct" Article (III review of its federal claims by a suit against the Secretary (id. at 62a n.36), /9/ and that the fact that direct Article III review of the decisions of other territorial courts is available is of no constitutional significance, because there is a rational basis for the difference between Samoa and those territories -- Samoa's small size, its distance from the mainland, its desire for autonomy, and its not having any organic act (id. at 63a). /10/ 4. The court of appeals unanimously affirmed (Pet. App. 1a-29a). The court first rejected petitioner's claim that it was denied due process and that its property was "taken" by the Samoan court's arbitrary and grossly erroneous refusal to accord Nouata I res judicata effect. The court held that the Samoan Court did not act arbitrarily or commit gross error because Nouata I was in fact ambiguous on its face and hence not preclusive of the issue of title to the land in dispute (id. at 11a-15a). /11/ The court of appeals next rejected petitioner's argument that its adverse possession claim had been unconstitutionally denied on the basis of the Samoan law barring alienation of land to non-Samoans. The court declined to reach the constitutional issue, agreeing with the district court that the High Court had relied on alternative, adequate and independent grounds (Pet. App. 17a). The Samoan court's rejection of the adverse possession claim, the court of appeals concluded, was based on three such grounds: first, the Samoan trial court's application of a 30-year rule (id. at 152a) was not reversed by the High Court (id. at 17a-18a) /12/ ; second, the High Court had ruled (id. at 162-163a & n.1) that communal land was not subject to adverse possession by anyone (id. at 18a); third, petitioner had not met the adverse-possession requirement of exclusive possession of the disputed land (id. at 15a-16a, 19a). Finally, the court of appeals rejected petitioner's challenge to the mode of judicial review of claims arising in Samoa. The court first reaffirmed the constitutionality, under Article IV, of Samoa's territorial courts (id. at 19a-22a). It then rejected petitioner's claim that, because the judgements of courts in other United States territories are directly reviewable in the circuit courts, petitioner had an equal-protection right to have Samoan court judgments (including rulings on local land-law issues, apparently) be directly reviewed in an Article III court. Applying a rational basis standard of review (id. at 22a-24a), the court concluded that the difference between American Samoa and other teritories was justified by Congress's commitment to preserving local Samoan customary law, especially in land matter (id. at 24a-28a). /13/ ARGUMENTS Petitioner renews, while narrowing, several of its federal-law challenges, continuing its effort to seek relief from a Samoan court decision in land dispute that rests, at bottom, on matters of local Samoan law. The court of appeals, like the district court, correctly rejected all of petitioner's claims. That decision does not conflict with any decision of this Court or of any other court. Further review by this Court is not warranted. 1. Petitioner first contends (Pet. i, 12-17), relying on Guam v. Olsen, 431 U.S. 195 (1977), that Article III of the Constitution and the Fifth Amendment Due Process Clause entitle it to direct review of Samoan court rulings on federal questions. But petitioner has in fact been afforded a full opportunity to litigate its federal claims in two Article III courts, the district court and the court of appeals. While petitioner obtained such review by filing suit against the Secretary rather than by seeking direct review from the Samoan High Court, the scope of review of the federal issues was exactly the same as it would have been on direct review. See King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975). Guam v. Olsen is entirely different. There, this Court construed Guam's organic act to provide for federal-court appellate review of a territorial court's criminal judgments. It adopted that construction in part to avoid the constitutional issue that might arise if federal-court review of federal claims raised by a criminal defendant in Guam were available only by a petition for a writ of habeas corpus. 431 U.S. at 201-204. Habeas-corpus review of federal claims is substantially narrower than direct appellate review of those claims (see id. at 202). Here, by contrast, there is no difference of substance between the review petitioner received and the direct review it seeks. Petitioner also contends (Pet. 17-19) that the absence of direct review on Federal questions denies it equal protection because direct review is available from the decisions of the courts of other territories. But petitioner cannot base an equal protection claim on the absence of direct review when petitioner has not been deprived of anything it would have if it could obtain direct review. In any event, because whatever rights petitioner has to Article III court review of its federal claims are, as we have noted, fully protected by the review petitioner has been afforded, petitioner's equal protection claim implicates no fundemental rights, and the court of appeals correctly applied a rational basis standard of review. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 54 (1983); Harris v. Rosario, 446 U.S. 651 (1980). Such a standard is particularly appropriate when reviewing congressional efforts to deal with the difficult issues that arise from the meeting of two different cultures and legal systems. As the court of appeals found (Pet. App. 24a-28a), American Samoa's distinctive culture and laws provide ample basis for Congress to structure the Samoan court system as it currently exists. 2. Petitioner further contends (Pet. i, 19-26) that the Samoan High Court took its property and denied it due process by arbitrarily failing to accord res judicata effect to Nouata I and Nouata II. But any "interesting" (id. at 26) constitutional questions that might arise if the High Court had abitrarily denied prior judgments res judicata effect are simply not presented. The court of appeals correctly concluded, relying on federal-law preclusion standards, that the High Court had not acted arbitrarily or committed clear error in finding, contrary to petitioner's contention, that the two prior decisions did not resolve the issue of title to Malaeimi. Nouata I on its face is ambiguous: while it speaks of Salataima's "property," it declares to be her property only "that part of Malaeimi that is leased," and it then declares only that Salataima "should have during her lifetime the rents" and suggests that she would have an interest to pass on at her death only if the lease is still running at that time (Pet. App. 71a). It is hardly arbitrary to construe the language of Nouata I, especially given the several other decisions of the High Court that the Samoan courts relied on, as awarding Salataima only a leasehold interest-or something that, in Samoan law, is like a leasehold interest. Moreover, Nouata III by its terms declined to consider what issues the Nouata I decision resolved, concluding only that the decision, whatever it means, is binding on the parties. Accordingly, the premise of petitioner's takings and due process claims is incorrect. 3. Petitioner finally contends (Pet. i, 26-29) that the court of appeals mistakenly viewed the High Court decision rejecting its adverse-possession claim as not resting on the Samoan Law prohibiting alienation of Samoan land to those who are not at least 50% Samoan blood. This contention merely raises a question about whether the court of appeals, like the district court, misconstrued a Samoan court decision; that question does not warrant this Court's attention. In any event, the lower court's construction of the High Court decision is correct. The Samoan court ruling rested on several adequate and independent local-law grounds, which render the constitutional question moot -- notably, that communal land like Malaeimi cannot be obtained by adverse possession by anyone (Pet. App. 162-163a & n.1), that petitioner did not have possession for the required 30 years (id. at 152, 162a-163a), and that petitioner had not shown that its possession was exclusive (id. at 153a, 175a). /14/ The court of appeals and the district court therefore correctly declined to address the constititional questions concerning the land-alienation law. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General JOHN F. CORDES ROBERT D. KAMENSHINE Attorneys APRIL 1988 /1/ The court added: "While she is living it is suggested that she shall make a written statement signed by two witnesses, who she wants this money to go to after her death if the lease is still running. It is only a suggestion but it might be a good idea for her to give it to the Puailoa family after she dies" (pet. App. 71a). /2/ The Puailoa family petitioned the Samoan governor for a new trial, arguing unfairness in the proceedings. The family contended that it lacked notice that the rent-payment dispute would be resolved in the proceeding, which was chiefly concerned with who would become the new matai, and that the land dispute was not properly before the court because the Puailoa family and Salataima were not parties to the case. Pet. App. 72a-89a. /3/ The division stated: "the same Chief Justice who authored the Nouata opinion indicated (one year later) that Salataima had not acquired title via the Nouata decision but only an interest in the rents from the Church lease" (Pet. App. 147a-148a). /4/ The division also ruled that, because the land was not "freehold" land, Am. Samoa Code Section 1280 (1949) prohibited its alienation to petitioner, who is not a person of at least 75% Samoan blood (Pet. App. 139a, 149a). That provision has since been amended (see page 6, infra). In addition, the division rejected petitioner's alternative adverse-possession claim to title, observing that a 30-year occupancy is required and petitioner did not have such occupancy (id. at 152a). /5/ The court modified and reversed various other aspects of the lower court holding (Pet. App. 162a-170a). /6/ Respondent American Samoa Government intervened. /7/ Petitioner also raised and the district court rejected a claim under the Administrative Procedure Act, 5 U.S.C. 701 et seq. (Pet. App. 64a-66a). /8/ The court cited, e.g., American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828), and Palmore v. United States, 411 U.S. 389 (1973). /9/ The court observed that, because petitioner can obtain review of federal claims at all three levels of the federal system, it "will have more opportunities for review in Article III courts than a litigant in a state court," who can obtain federal-court review only in this Court (Pet. App. 62a). /10/ The district court also rejected petitioner's various other challenges to the Samoa court system (Pet. App. 55a-59a, 62a-63a). /11/ The court noted that Nouata I's statement that "that part of the (land) that is leased" is Salataima's "property" suggested her ownership of a fee interest, while the statements that she was entitled to the rents "during her lifetime" and that she could pass the rents by will "if the lease is still running" at her death suggested a mere leasehold interest (Pet. App. 12a). The court of appeals also ruled that there was no due process requirement that either the district court or the Samoan court have taken evidence on the practical consturction given Nouata I by the parties (ibid.). /12/ Petitioner's asserted possession from 1953 to 1978 would not qualify under that rule. /13/ The court observed that the Samoan High Court, unlike its counterparts in other territories, has a duty to follow local customary law (the Fa'a Samoa) rather than prevailing common law (Pet. App. 27a). To help fulfill this duty, the five-member court consists not only of three justices, but of two associate judges who are typically local leaders knowledgeable in Samoan traditions, including land law and customs, but not necessarily educated in United States law. Moreover, whereas in ordinary cases the decision of two justices is dispositive, in land title cases a majority vote of the whole court controls (id. at 26a). The respect for Samoan traditions that this system fosters could be jeopardized by providing for review of local law matters by a circuit court that lacks expertise in Samoan law and culture. The court of appeals recognized that the litigant may bring "suit" against the Secretary insofar as he may fail to keep the High Court within constitutional bounds" (id. at 28a). /14/ In addition, the High Court ruled that the Samoan adverse possession statute does not permit adverse possession by a foreign corporation (Pet. App. 175a). The court pointed to the land-alienation law as support (ibid.), but that ruling is not the same as a ruling that land may not be alienated to those of less than 50% Samoan blood.