SLIP OPINIONS
 
OF THE
 
TRIAL DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2014)

BIRDSALL ALA‟ILIMA, for himself and his minor daughter MARLENE ALIA ALA‟ILIMA,
Plaintiff,
 
v.
 
AMERICAN SAMOA GOVERNMENT, SALA, FREDERICK O‟BRIEN, HAWAIIAN AIRLINES and DOES I-XX,
Defendants.
 
High Court of American Samoa
Trial Division
 
CA No. 22-09

April 11, 2014
 
 [1] The court may grant a motion for reconsideration or a new trial based upon a manifest error of law or mistake of fact, a decision contrary to the clear weight of evidence, a decision that is manifestly unjust, an intervening change in the law, or the discovery of previously unavailable evidence. However, a judgment will not be set aside except for substantial reasons. 
 
[2] On review of a motion for reconsideration, the Court will not construct a legal theory on behalf of the moving party. 
 
[3] It is the responsibility of the movant to fully articulate his or her arguments in opposition to the original order and to provide the court with research and justification beyond unadorned, conclusory statements. 
 
[4] The Court will not reverse a dismissal of Plaintiffs‘ unconstitutional stop order claim more than four years after the fact based on a second motion for reconsideration that is entirely unsupported by factual or legal arguments. 
 
[5] It is apodictic that a party moving for reconsideration must do more than reiterate our reasons for a decision and then make a blind assertion that we were incorrect. 
 
[6] The High Court has previously identified the matai title system, communal land ownership, and Samoan language as the "pillars of fa’a Samoa." 
 
[7] The freedom of speech is not absolute. 
 
[8] United States Supreme Court precedent has established that vulgar, offensive, and shocking speech is not entitled to absolute constitutional protection. 
 
[9] Federal precedent provides for local discretion with respect to specific types of speech so that what constitutes obscene speech rests in part on a local or community "prurient interests" standard. 
 
[10] Whether a "public attack" runs afoul of Section 4 is determined by whether the comment is malicious, unjustifiable, and deleterious to traditional Samoan cultural standards of comity, respect, dignity, or honor. 
 
[11] While the Defendant‘s comments to local media were a protected opinion under a defamation analysis, the same was not true under an Article I, Section 4 analysis since Defendant‘s comments amounted to an unsubstantiated acrimonious opinion designed to impinge on the honor and reputation of Plaintiff in violation of Samoan cultural norms. Such comments do not warrant Section 1 freedom of speech protection. 
 
[12] The measure of damages is a question of fact, and, as the trier of fact in civil controversies, the Court enjoys substantial discretion in determining damages. 
 
Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and MUASAU, Associate Judge 
 
Counsel: For Plaintiffs, Charles Ala‘ilima 
 For Defendants, Elesalo V. Ale and Michael L. Iosua, 
 Assistant Attorney Generals 
 
ORDER DENYING PLAINTIFFS' AND DEFENDANTS‘ MOTIONS FOR RECONSIDERATION
 
Background
 
The Court‘s decision entered in this action provides an extensive factual and procedural background of this case. See Ala’ilima v. Am. Sam. Gov’t, CA No. 22-09, slip op. at 8-11 (Trial Div. August 15, 2013) (op. & order). Currently before the Court are each party‘s motions for reconsideration and Defendants‘ motion for clarification, all of which were filed on August 26, 2013. For the reasons stated below, the three motions are denied. [**2**] 

Standard of Review
 
[1] The court may grant a motion for reconsideration or a new trial based upon a manifest error of law or mistake of fact, a decision contrary to the clear weight of evidence, a decision that is manifestly unjust, an intervening change in the law, or the discovery of previously unavailable evidence. See Boral Gas of Am. Samoa, Inc. v. Iaulualo, 7 A.S.R.3d 57, 58 (Trial Div. 2003); Nua v. Sunia, 4 A.S.R.3d 234, 238 (Trial Div. 2000); Clifton v. Voyager, 31 A.S.R.2d 12, 16 (Trial Div. 1996). However, a judgment will "not be set aside except for substantial reasons." Am. Samoa Gov’t v. S. Pac. Island Airsystems, Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995). 
 
[2-3] In addition, on review of a motion for reconsideration, the Court will not construct a legal theory on behalf of the moving party. See Suluai v. Nat'l W. Life Ins. Co., 6 A.S.R.3d 216, 218 (Trial Div. 2002). Instead, it is the responsibility of the movant to fully articulate his or her arguments in opposition to the original order and to provide the court with research and justification beyond unadorned, conclusory statements. See id.; In re: a Minor Child, 30 A.S.R.2d 22, 22-23 (Trial Div. 1996). 
 
I. Plaintiffs' Motion for Reconsideration. 

A. Denial of Plaintiffs‘ motion to reconsider a challenge of the stop order originally dismissed by the Court in August 2009 [**3**] 

Plaintiffs first ask the Court to reconsider the order of August 17, 2009 in which we dismissed Count Four of the initial complaint concerning Plaintiffs‘ challenge of the allegedly "unconstitutional" stop order. See Ala’ilima v. Am. Sam. Gov’t, CA No. 22-09 at 13 (Trial Div. Aug. 17, 2009) (order granting in part & den. in part def. mtn. to dismiss). As Plaintiffs mention, we previously denied a motion to reconsider this issue on February 4, 2010. 
 
[4] In an exceedingly vague argument, Plaintiffs claim reconsideration is warranted due to "the evidence presented at trial regarding the circumstances surrounding the issuance" of the stop order. The Court will not reverse a dismissal of Plaintiffs‘ unconstitutional stop order claim more than four years after the fact based on a second motion for reconsideration that is entirely unsupported by factual or legal arguments. The absurdity of this statement alone should serve to caution Plaintiffs against filing motions that could very well be deemed frivolous. 
 
Plaintiffs also ask the Court to reconsider the stop order due to the Attorney General‘s alleged pattern of non-compliance with appropriate stop order procedures. See A.S.C.A. § 41.0513. Plaintiffs‘ motion amounts to a request for an advisory opinion or a general injunction proscribing procedurally invalid stop orders. Neither of these remedies is appropriate or within the [**4**] Court‘s authority. Moreover, our ultimate holding did not depend on the validity of the stop order but instead concerned the content of and impetus for Defendants‘ allegedly defamatory and offensive conduct. We therefore deny Plaintiffs‘ motion for reconsideration of this matter. 
 
B. Denial of Plaintiff Birdsall Ala‘ilima‘s motion to reconsider the liability of Defendants O‘Brien and Sala for allegedly defamatory comments. 

Plaintiff Birdsall Ala‘ilima ("Birdsall") next moves for reconsideration of whether Defendants Frederick O‘Brien ("O‘Brien") and Mike Sala ("Sala") are liable for defamation. At trial, Birdsall claimed O‘Brien defamed him both by issuing a baseless stop order and by commenting to local media regarding a purported criminal investigation into Birdsall‘s management of THOS. As to Sala, Birdsall‘s defamation claims arose from Sala‘s conversation with O‘Brien to request the stop order and later comments to Samoa News that Birdsall‘s directorship of THOS contributed to the territory‘s financial crisis. 

With respect to O‘Brien, we held that he issued the stop order and commented in his official capacity as acting Attorney General, did not act with malice, and was therefore not liable for defamation. See A.S.C.A. §§ 43.5202(1), (3). Regarding Sala‘s liability, we first held that his comments to O‘Brien [**5**] were made pursuant to his official duties as the director of OTICIDE. We next held that Sala‘s public comments to Samoa news, though malicious, constituted a hyperbolic opinion that could not be taken seriously by a reasonable person. 

[5] In the instant motion, Birdsall does not present plausible alternative arguments to these holdings but instead merely disagrees with the Court‘s reasoning and findings of fact. It is apodictic that a party moving for reconsideration "must do more than reiterate our reasons for a decision and then make a blind assertion that we were incorrect." G.M. Meredith & Assoc. v. Blue Pac. Mgmt. Corp., 28 A.S.R.2d 204, 206 (Trial Div. 1995). This is precisely what Birdsall has done in his motion to reconsider the liability of O‘Brien and Sala for allegedly defamatory publications. We therefore deny the motion for reconsideration. 
 
C. Denial of Plaintiffs‘ motion to reconsider ASG‘s liability under A.S.C.A. §§ 43.1201 et seq. 

Plaintiffs finally moves for reconsideration of whether ASG is liable for the allegedly unconstitutional stop order issued by O‘Brien and the defamatory statements made by both O‘Brien and Sala. In support of their argument, Plaintiffs make the unsubstantiated assertion that "the facts here show that the ASG through the Attorney General have been permitting the unofficial [**6**] practice of Assistant Attorney Generals to issue stop orders." Plaintiffs also claim that "ASG was complicit in permitting this activity." Plaintiffs‘ argument is entirely conclusory, exceedingly vague, devoid of factual references or support, and will therefore not be entertained by the Court. 
 
II. Defendants‘ Motion for Clarification and Reconsideration of Sala‘s Liability Pursuant to article I, section 4 of the Revised Constitution of American Samoa. 
 
A. Denial of Defendants‘ motion to reconsider Sala‘s liability under article I, section 4. 

 Defendant American Samoa Government ("ASG") questions our holding that although Sala‘s comments to the newspaper regarding Birdsall and THOS were not defamatory, they did constitute "a malicious and unjustifiable public attack[] on [his] name, reputation, or honor," a violation of AM. SAMOA REV. CONST. art. I, § 4. According to ASG, it is a "universal maxim" that a former departmental director such as Birdsall should be assigned responsibility for his department‘s financial difficulties and eventual dissolution. Thus, ASG argues, Sala‘s comments were "certainly justifiable" and "to be expected." Lastly, ASG argues that the Court did not define a clear standard for the constitutional violation and that whatever standard we did apply [**7**] established a lower burden than that required for statutory defamation. 

[6] Our holding recognizes the unique circumstances of American Samoan jurisprudence which must accommodate both Samoan custom and Western law. American Samoa‘s Constitution, statutory law, and Treaties of Cession all attempt to bolster the delicate balance of this dichotomy through provisions to safeguard fa’a Samoa against excessive intrusions from Western law. See AM. SAMOA REV. CONST. art. I, § 3; Treaty of Cession of Tutuila and Aunu‘u; A.S.C.A. § 1.0202; A.S.C.A. §§ 1.0401 et seq. The High Court has previously identified the matai title system, communal land ownership, and Samoan language as the "pillars of fa’a Samoa." Kruse v. Am. Sam. Gov’t, 6 A.S.R.3d 318, 321 (Trial Div. 2002); see also Fanene v. Fanene, 8 A.S.R.3d 339, 339-40 n.1 (Land & Titles Div. 2002) (citing Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983)) 
 
Article I, Section 3 of the Revised Constitution provides that, "[i]t shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against . . . destruction of the Samoan way of life and language." To that end, it is important to recognize the interplay of language and culture. A defining attribute of the Samoan language is its syntax, which [**8**] is uniquely structured to project a degree of formality and respect specific to fa’a Samoa. Thus, a comment or personal reference that might not cause offense in the American cultural context may in fact be an affront to individual or familial honor and dignity in Samoan culture. That a comment is spoken in English rather than Samoan does not dilute its potency. 

With due deference to the decorum of Samoan culture, the framers of American Samoa‘s Revised Constitution included Article I, Section 4 to defend individuals and families from disparaging remarks that may not run afoul of anti-defamation statutes borrowed from Western law. Compare A.S.C.A. § 43.5201 with Cal. Civ. Code §§ 44-46 (containing virtually identical language). However, there is some concern that Section 4 may conflict with the freedom of speech protections in both the American Samoa and United States constitutions. See AM. SAMOA REV. CONST. art. I, § 1; U.S. CONST. art I, § 1. 
 
[7-9] But the freedom of speech is not absolute. See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988). Roundly-accepted United States Supreme Court precedent has established that "vulgar,' 'offensive,' and 'shocking' [speech] is not entitled to absolute constitutional protection." FCC v. Pacifica Found., 438 U.S. 726, 747 (1978); see also Condit v. Dunne, 317 F. Supp. 2d 344, 360 (S.D.N.Y. 2004). In addition, federal precedent provides for local discretion with respect to specific types of [**9**] speech. For example, what constitutes "obscene speech‖ rests in part on a local or community "prurient interests" standard. See Miller v. California, 413 U.S. 15, 20-22 (1973). 
 
[10] Similar to these restrictions, the inclusion of Section 4 in the American Samoa Bill of Rights serves as a local limitation to the Section 1 freedom of speech protection. Falwell, 485 U.S. at 56 (holding that freedom of speech is "subject to limitations"). Whether a "public attack" runs afoul of Section 4 is determined by whether the comment is malicious, unjustifiable, and deleterious to traditional Samoan cultural standards of comity, respect, dignity, or honor. This standard is informed both by the express language of Section 4 as well as the High Court‘s precedent interpreting and applying fa’a Samoa. 
 
[11] In the case at bar, we held that what is offensive under Samoan cultural norms embodied by Article I, Section 4 is different than what is defamatory under Western norms codified by A.S.C.A. § 43.5201. See Ala’ilima, CA No. 22-09 op. at 8-11 (op. & order). As per the discussion above, this holding is consistent with the amplified Samoan cultural protection of dignity and honor. See AM. SAMOA REV. CONST. art. I, § 4. As to freedom of speech, although we held that Sala‘s comments to local media were a protected opinion under a defamation analysis, the same is not true under an Article I, Section 4 analysis. Sala‘s comments amounted to an unsubstantiated acrimonious opinion designed to [**10**] impinge on the honor and reputation of Birdsall in violation of Samoan cultural norms. Such comments do not warrant Section 1 freedom of speech protection. We therefore deny Defendants‘ motion for reconsideration of our holding that Sala‘s comments violated Article I, Section 4 of the American Samoa Constitution. 
 
B. Clarification of Defendant Sala‘s individual liability for all damages and denial of Defendants‘ motion to reconsider damages. 

[12] ASG also moves for reconsideration of our damages award based largely on ASG‘s opinion that Plaintiffs did not prove damages by a preponderance of the evidence. As we stated in our order, "the measure of damages is a question of fact." Ala’ilima, CA No. 22-09 at 11 (op. & order) (citing Clifton v. Voyager, Inc., 31 A.S.R.2d 12, 24 (Trial Div. 1996). In addition, as the trier of fact in civil controversies, the Court "enjoys substantial discretion in determining damages." Id. 
 
We awarded Birdsall $15,000 in actual damages due to the emotional distress he suffered as a result of Sala‘s comments. Nothing in ASG‘s motion shows that our damages award was based on a manifest mistake of fact. See Iaulualo, 7 A.S.R.3d at 58. Similar to the tort of intentional infliction of emotional distress, emotional distress in a defamation action does not require proof of objective symptoms of distress. See Kloepfel v. Bokor, 149 Wn.2d 192, 198 (Wash. 2003)(holding that "many [**11**] states" do not require evidence of objective symptoms). Here, the totality of the circumstances provides sufficient evidence that Birdsall suffered emotional distress from Sala‘s malicious and outrageous comments. The $15,000 damages award was appropriate to compensate Birdsall for this injury. Moreover, the spiteful and malicious nature of Sala‘s comments fully justifies our punitive damages award of $30,000. We therefore deny Plaintiffs‘ motion to reconsider damages. 
 
To clarify our holding regarding liability for the damages, Sala is individually liable for the full damages of $45,000. ASG does not share any joint liability for these damages. 
 
Order
 
Plaintiffs‘ motion for reconsideration is denied in full. Pursuant to Defendants‘ request for clarification, we hold that Defendant Mike Sala is individually liable for the $45,000 damages award and that Defendant ASG is not liable for any damages. Defendants' motion for reconsideration is denied in full. 
 
It is so ordered. 
 
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