The Trial Division of the High Court has denied a motion for reconsideration or new trial, filed by the current ‘de facto’ members of the ASG Employees Retirement Fund board of trustees, saying that the plaintiffs do not make prevailing arguments for such a request.

(In common legal usage, de facto means that something is in effect in reality without a law mandating it, while something that is de jure means it is specifically mandated by law.)

This is according to the court transcript of the decision issued yesterday from the bench following a brief hearing. Presiding over the hearing was Chief Justice Michael Kruse and Associate Judge Fa’amausili F. Poumele.

Plaintiffs in the lawsuit are Aleki Sene Sr., Faoa Aitofele Sunia, Fanene Morris Scanlan, and Sen. Magalei Logovi’i. Local attorney Marcellus T. Uiagalelei represented them while Assistant Attorney General Elana Rivkin-Hass represented the defendants.

Samoa News should point out that Fanene resigned recently from the board while the Fono rejected the governor’s reappointment of Sene, Magalei and Faoa last month. The suit, which sought declaratory and injunctive relief, also asked the court to invalidate the governor’s nominees to the board, sent early last year.

At the outset of yesterday’s hearing Kruse noted that the plaintiffs are four serving members of the board and pointed out that provisions of local law contemplate a five-year term for board members, but plaintiffs remained on the board many years after their terms expired.

The governor (the main defendant in the case) last year submitted new appointees to the Fono without consulting the plaintiffs, who as board members sued the governor. The court held a trial on this matter and found in favor of the defendant.

Then the plaintiffs moved for a new trial or reconsideration, according to the court transcript of the hearing.

Kruse said the issues before the court in a new trial matter are:

• Did the court commit clear error or was its initial decision manifestly unjust to grant plaintiff's motion?

• Should the court stay enforcement of judgment, pending appeal?

“At the outset we deny plaintiffs’ motion for a new trial and also deny their motion for Stay or enforcement of judgment,” said Kruse, who then addressed the issue on ‘Motion for New Trial’.

He said reconsideration is appropriate if the trial court is presented with newly discovered evidence that it committed clear error, the initial decision was manifestly unjust, or if there is an intervening change in controlling law.

“None of these is applicable to this case and because there has been no new evidence or change in law, the only way plaintiffs could prevail on their motion is if the court committed clear error or the initial decision was manifestly unjust,” he said.

He went on to point out that the court’s decision rests on whether the plaintiffs were ‘de jure or defacto officers’ and that the court correctly concluded they were de facto officers, citing U.S. Supreme Court precedent, and as de facto officers, plaintiffs lack standing to sue.

Further, the governor was not required to consult and select replacement board members based on the desires of the de facto officers.

On the issue of Stay and determining whether to stay the enforcement of the judgment, Kruse said the court considers countervailing factors: the likelihood of the moving party’s success on appeal; the balance of equities between the parties; and whether public interest would be affected by a Stay.

“While it is likely that Trustees will be replaced or re-appointed prior to the conclusion of an appeal, if failed, plaintiffs have failed to demonstrate they are likely to succeed on appeal,” Kruse said.

In conclusion, Kruse said “Plaintiffs have made no prevailing arguments in their motion for reconsideration to indicate the court committed an error or issued a manifestly unjust decision,” said Kruse