To prevent “public perceptions of judicial impartiality”, Chief Justice Michael Kruse recommended an additional judge to the bench because many of the current judges are appointees of former Gov. Togiola Tulafono, who is back to practicing law and has cases pending before the High Court of American Samoa.

Kruse recommended Sen. Paepae Iosefa Faiai in an Oct. 25th letter to Gov. Lolo Matalasi Moliga, who then appointed Paepae as an associate judge, subject to Senate confirmation only. Paepae’s nomination was introduced in the Senate yesterday with his confirmation hearing set for this morning.

“I have been mulling over the idea of recommending the appointment of an additional associate judge,” Kruse wrote to Lolo.

Kruse explained that this comes in light of the fact that Togiola has resumed his legal practice and therefore, is making recurring appearances before the court as an attorney and senior member of the American Samoa Bar Association. Kruse noted that Togiola appointed four of the associate judges currently holding court.

According to the Chief Justice, Togiola resuming private practice has been most welcomed by the public whose access to legal representation in “matai title and land disputes has been impacted by the declining number of bar members available to assist in such matters.”

“The courts, however, are placed in a difficult position whenever counsel Togiola appears before a judge that he appointed during his administration,” Kruse explained. “Such situations risk compromising public perceptions of judicial impartiality.”

Aside from Chief Associate Judge Mamea Sala, who was appointed by former Gov. Tauese P.F. Sunia, and Associate Judge Tunupopo, appointed by Lolo, “the rest of the judges are Togiola appointees,” said Kruse.

“To complicate” matters and add to the difficulty faced by the courts, Kruse said “citizen Togiola is also a litigant/candidate in the ongoing succession dispute” before the Lands and Tittles Division involving the Leiato matai title.

According to Kruse, Acting Associate Justice Elvis R.P. Patea is the presiding justice — substituting for Associate Justice Lyle Richmond who has been on extended medical leave — on the panel of judges assigned to the Leiato case.

Although Patea was appointed to the High Court by the US Secretary of Interior, “his ongoing commission as District Court Judge, however, came about by his being appointed by Governor Togiola as well,” Kruse said.

“According to case law, none of the associate judges appointed by former Governor Togiola is qualified to sit in any case in which he is a party, unless the ‘rule of necessity’ prevails,” Kruse explained.

“The rule of necessity is an extreme measure used sparingly to allow a disqualified judge to adjudicate a case where no one otherwise qualified is available,” he further explained. “While the rule of necessity had to be invoked in the Faumuina [matai title] case, the court was nonetheless left with an appearance problem.”

Therefore, said Kruse, he has decided to seek the appointment of an additional associate judge “to ameliorate somewhat our appearance problem, as well as the inevitable conflicts that small jurisdictions, like our territory, commonly experience.”

Pursuant to local law, Kruse recommended Paepae as associate judge. Kruse revealed that prior to Paepae’s selection to the Senate, “he had... indicated his very keen desire to serve the people and government of American Samoa as an associate judge... on a pro tempore basis.”

Kruse said Paepae has consented to his name being submitted as an associate judge on a full time basis. Kruse anticipates that Paepae will resign from the Legislature upon confirmation to the bench, because he will not be able to serve in both branches of government.

Kruse’s letter was included as part of Lolo’s nomination letter sent to the Senate last week.