OA - In re Request of Leon Guerrero CRQ26-001

Ajouté : 2026-05-20

[00:01:02]Ask the clerk to please call the case.

[00:01:05]>> This is Supreme Court case CRQ26-00001 in request of Lordis A. Leon Guerrero E.

[00:01:13]Magahagen Guan relative to organic act limits on leg legislative conditions affecting the governor's authority to establish hospitals. Appearing for petitioner Lordis A. Leon Guerrero E Magahogen Guan are attorneys Leslie A. Travis Jeffrey Mootz and Alexander Ford. Appearing for respondent E minota Huran Guhan is attorney Michael F.

[00:01:39]Phillips. Panel consists of Chief Justice Katherine A. Marman, Associate Justice F. Philip Carbolito, and Associate Justice Robert J. Torres.

[00:01:48]Attorney Travis reserves 5 minutes.

[00:01:52]Before we begin, I would like to make a brief statement.

[00:01:56]As a preliminary matter, the court would like to note for the record that the legislaturator's brief contains several inaccuracies, at least some of which severely impact the substance of its arguments. On page two of its brief, the legislature argues that this court rejected a separation of powers challenged in AB Wanpath International Airport Authority versus MUAN 2005 Guam 5 paragraph 28, but that paragraph is a quotation of 42 USCA section 1421G.

[00:02:35]On pages two and 59 of its brief, the legislature argues that Barrett Anderson versus Kamacho 2018 Guam 20 paragraph 20 emphasized the need to preserve structural balance among co-equal branches. But that government paragraph was about attorney disqualification.

[00:02:59]On pages 3 56 and 7 of its brief, the legislature cites a non-existent page 282 of Nelson vata 878 federal 2nd 277 night circuit 1989.

[00:03:18]On page 27 of its brief, the legislature cites a non-existent quote from Fleet Services Inc. versus Department of Administration 2006 qual 6. Finally, on page 33 of its brief, the legislature cites 48 USC A section 1421 GD1 for the proposition that the governor of Guam appoints the attorney general. However, the attorney general has been in elected position since the passage of public law 250044 in 1999 with the first AG election taking place in 2002.

[00:04:01]Based on the number and type of inaccuracy in the legislature brief, it appears likely that these errors are due to AI hallucinations.

[00:04:11]The court's AI policy, which became effective May 1st, 2025, clearly states that the rules of professional conduct apply fully to the use of AI technologies, and that it is the responsibility of attorneys, judges, and self-represented litigants to ensure the integrity of their final submissions. The pol policy requires all users to conduct thorough reviews of AI generated content prior to its submission in any judicial proceeding to ensure accuracy and compliance with legal and ethical obligations.

[00:04:52]The court is reviewing any potential misconduct on the part of the legislaturator's council and will take appropriate measures in a separate order or proceeding.

[00:05:05]We'll now go forward with the argument.

[00:05:09]Miss Travis Good morning, Madame Chief Justice.

[00:05:25]Esteemed justices, may it please the court.

[00:05:28]Almost exactly 5 years ago today, this court considered the very same organic act provisions at issue here today and reaffirm the same structural rule that was first recognized in the Ninth Circuit nearly five decades ago. That is where the organic act specifically assigns authority to the governor under 1421GA.

[00:05:53]That specific delegation controls over the more general authority conferred on the legislature under section 1423A.

[00:06:02]The legislature argues here today that application of this settled rule here would effectively remove all limitations on the governor's exercise of her organic act authority. But your honors that is a straw man. The question has never been whether limits on the governor's powers exist. We can see that out of hand. Of course they exist. The question here today is who determines those limits and under what constitutional authority. We submit that the governor's constitutional I'm sorry that under our constitutional structure those questions are not unilaterally resolved by the attorney general or whomever else the legislature seeks to appoint but by the courts through sound judicial review.

[00:06:57]The legislature has raised several arguments in an attempt to dislodge this court's finding in Enray Leonerero 1, which I'll refer to as LG1 during this discussion. And some of these, your honor, have already been firmly resolved by this court and by uh Bordalio versus Baldwin and its progyny in the Ninth Circuit, specifically uh subject to the laws of Guam and what that means in the context of 1421GA and 1423A.

[00:07:26]Subject to laws of Guam cannot mean subject to any law that the legislature wants to enact because then 1421GA would simply collapse in the general power of 1423A.

[00:07:42]So that specific power >> what would be a limiting principle uh in furtherance of the language of 1421GA uh subject to the laws of Guam? Could I mean give me an example where you think that that would fall between a u permissible regulation of you know establishment of a hospital and an impermissible cond condition and the exercise of that power? Your honor, I think we actually have two examples already um based on the uh this court and the Ninth Circuit's prior rulings. Uh not specific to the hospital, but also with regard to 1421 GA, I'm sorry, GB in that case. And um and with regard to the governor's specific power uh to control uh the the uh employees of the executive branch of Guam. That's an Inray Leongerero, your honor. So in En in Leonerrera, there was a specific legislative power over appropriations versus a specific power that the governor had to control the executive branch of Guam. And in that case, the court actually held in favor of the governor where the legislative branch branch sought to condition its appropriation power on monitoring so closely the appointment and payment of all executive branch employees. And in that case in re uh in re Gutirez this court determined that that actually uh usurped the authority of the governor to control her uh employees. That's one your honor. The second one I think um which is maybe more directly relevant here is Brown versus a civil service commission which is a ninth circuit case. And in that case your honor again the specific power of the legislature to establish a merit-based system for the employees of Guam ran up against the specific power of the governor at that time to establish public schools or to operate public schools. And in that case, it leaned in favor of the legislature because their power to establish a merit-based system superseded the governor's power in general to control schools. And so she could not establish her own merit-based system for the employees of Guan public schools. So there, your honor, I think is a very clear limiting principle. You have to have the same hierarchy, the same level in the hierarchy of powers, specific versus specific. the general cannot control the specific as this court held in Guerrero.

[00:10:20]>> You you point out um examples um that I think the court is quite familiar with and um there there were uh seems to be clear usurpation of uh the governor's uh powers uh in in relation to what occupies the field. But in in the facts, let's talk about the facts of this case and specifically uh 5150.

[00:10:50]Now, Mr. Phillips uh I I don't think really argues um for a universal rule or that the governor has absolute authority, but it seems to be uh one of degree and um and and in in in reference specifically to um section 5150, it appears that um uh the challenge really has to be to how the statute is applied and um and and the problem may not be with the statute, the language of the statute. um you you seem to um draw out that uh there the local statute conflicts with the governor's uh organic act powers in terms of maintaining health facilities in particular the hospital here. Uh but in it the what is being pointed out is really how that is applied and and who is applying it and and so uh maybe u the appropriate remedy is not for us to pronounce some kind of universal rule that recognizes an absolute authority.

[00:12:14]uh but just uh do it um on a case-bycase basis depending on what the challenge is and who is challenging it.

[00:12:24]>> Uh yes, your honor and thank you for the for the point. Um I think there are a couple of issues that I would like to address from the court's um summary of what the facts are. First, the governor is not arguing that she has absolute authority. That's never really been a claim that the governor has asserted. And I think that the case law bears out that that's not true. No one is saying she has absolute authority.

[00:12:49]She has ultimate authority. And the legislature can pass laws that affect her power here. They just can't do it in a way that materially interferes with her exercise of her organic act function. And with regard to as applied, as your honors know, we're not seeking to in to facially invalidate the entire statute 5150.

[00:13:10]Here, we're seeking to challenge the on on an as applied basis how it applies to the governor's power under 1421GA.

[00:13:18]And we would submit to the court that there's an implication in 5150, a strong one, and certainly it's been adopted by the legislature. It's been adopted by the attorney general. And we can go to court of course to battle over who's who has these powers. But the point is that the governor shouldn't have to. The burden should really be on the person who seeks to enjoin her from proceeding with her organic act powers to go to court and seek an order stopping it.

[00:13:46]>> How how would we go about making this pronouncement um that um covers all areas? Um it that that is seems to be very difficult in my mind uh for us in the abstract um without specific facts in terms of how it is as applied as you um as you raise uh for us to then pronounce um I mean if you're asking for us to say you know the governor's has um organic act powers in relation to the hospital and that um she has the power to um establish maintain um control u how hospitals are are um set up here in Guam. I don't think anyone really challenges that. And so so if if if it's difficult in my mind to grasp how is it that we're going to fashion as some type of rule that uh in the abstract uh applies and and we're able they're the parties are able to determine that's in specific violation to that principle. Your honor, I believe that the court has articulated this rule already in people versus paris. That does require a case-byase determination.

[00:15:14]It doesn't matter whether or not the I mean it does matter of course, but it's not the ultimate determination. It doesn't stop where you determine that one branch or one constitutional actor has ultimate authority over a particular subject matter. under Paris, the first prong. The question is whether or not the the statute that's at issue materially interferes with the exercise of that power. If it doesn't, then the analysis under Paris stops. It's not all all statutes that that impact or burden or in Mr. Phillips's words that touch the statute. It's never been the case.

[00:15:52]under Perez, it's specific to whether or not it materially interferes with the exercise of that power. And that determination is conferred, of course, to the sound judgment of the court. And so that is the limiting principle, your honor. It's not a free-for-all. The governor gets to do whatever she wants.

[00:16:07]>> And so you suggest that 5150 materially impairs.

[00:16:11]>> Absolutely.

[00:16:12]>> And so then it takes us to the second part of the Paris test.

[00:16:16]>> Yes, your honor. So the second prong of peris of course is whether or not there's a overriding constitutional justification for that interference. And I would submit to the court that one there doesn't appear to be uh any constitutional interference that's been identified by the legislature here.

[00:16:36]These general interests in ensuring that that funds are properly spent, transparency, oversight, all of those issues. your honor are I think that those apply to every procurement law.

[00:16:51]>> I I want to back up a bit if you there's no objection to the first part of the test. I think in in reference to uh 5150 um there there the the the limitation as I understand it is that the attorney general uh is limited in his review uh of the for example specific contract uh as to legality and form. So, so there are uh clear limitations on what the attorney general um can u determine in reference to for example a specific uh a contract. He doesn't determine policy.

[00:17:36]Uh he can't tell the governor in terms of u where where the hospital uh should be and and in in my mind how it it should be operated. So, so in strictly first in reference to the language of the statute, uh, does that statute usurp the governor's powers under the organic act?

[00:18:00]>> Yes, your honor.

[00:18:02]>> And and and how is that the case if if and I'm talking about the language we'll get to as applied in reference to if the limitation is just uh for review as to legality and form. I mean, if you take the position that that is problemsome, then I I I really don't can't see an example that's not problemsome.

[00:18:27]>> Yes, your honor, if I may, the problem is erecting a wall uh for a a a constitutional actor who has nothing to do with 1421GA, no express powers in there to block the governor from doing anything. And the the problem really is that 5150 allows the attorney general regardless of what his review is for. Sure, legality and form. It allows him to unilaterally stop the governor from proceeding. And that should not be the case, your honor, under our constitutional structure.

[00:19:00]>> Travis, that's where the courts come in.

[00:19:03]That's where the courts can say um that has um number one you Mr. Attorney General, you've exceeded uh your authority in reference to um what is uh legal and what is um proper permissible as to form. And if if he he then goes beyond that u the statute uh prevents him from doing that as interpreted by the courts.

[00:19:37]>> Your honor, I agree with you 100%. I believe that the court has reached the crux of the issue here today. The issue is that the attorney general doesn't need a court determination to effectively enjoin the the governor's actions. He can just unilaterally block it. And under the structure under our constitutional structure, the only entity that's able to make pronouncements regarding the governor's uh actions or even the legislaturator's actions is the court. It's not some unilateral action by some inferior uh executive branch um officer.

[00:20:15]>> Then doesn't the the governor have the remedy then of resorting to the courts uh to um um rectify that circumstance?

[00:20:24]>> Your honor, I would submit that it's not really much of a remedy. I would submit that the fact that she can sue that will always be true. She can always sue, but so can the attorney general. And this is in this operates in reverse for some reason. In order to burden the governor's constitutional power, she has the attorney general can unilaterally act and then she has to go in and prove that she's not violating the law.

[00:20:49]Whereas the attorney general has a perfectly suitable remedy and so does the legislature that doesn't violate the organic act of them going in when they think she's violating the law and suing.

[00:21:01]And by the way, the attorney general has done exactly that. In December 2024, he sued the governor claiming that she was violating all manner of ARPA, all manner of open government law, etc. Um, the problem is he didn't seek an injunction.

[00:21:17]5150 effectively operates as that injunction.

[00:21:20]>> So, in my mind, Miss Travis, it's just a matter of time. Now I can understand that uh litigants um u may want a expeditious resolution and answer today uh that uh their powers are being encroached.

[00:21:40]However uh in in my mind the rule of law will ultimately prevail. It may not happen uh based on the timing that is satisfactory to the parties. uh but um I have a a lot of confidence that ultimately uh the day will come when uh the pronouncements are properly made as to what's an proper interpretation um of those provisions.

[00:22:05]>> Your honor, I agree with you. But the question is who should bear the burden of that delay? Should it be the governor who has the constitutional power to act or should it be some other actor who really just has a statutory authority to act? In this case, because the governor is exercising her constitutional power, the the legislature and the attorney general should have to do what we're doing here today. We believe 5150 is inorganic. What do we do? We sue.

[00:22:32]There's no executive order that orders something else. We have to con comply with the fact that the legislature of course has the power to enact laws. And because we believe it's inorganic doesn't mean we can unilaterally take action. We have to go to the courts. And that is the remedy we're seeking here today.

[00:22:49]>> But is 5150 really uh uh have a constitutional defect in the statue itself or is it has being applied by the attorney general in this situation?

[00:23:00]>> Your honor, I just want to uh refine that point a little bit more. It's not specific to this attorney general. The legislature is not arguing that the attorney general is misapplying the law.

[00:23:11]They're saying the attorney general is applying the law and that's our problem.

[00:23:15]The problem is this law though facially neutral as applied to the governor's constitutional right her organic right under 1421GA is unconstitutional and inorganic.

[00:23:28]>> So let's assume that we give you the declaration that you're looking for.

[00:23:33]What is the precise legal mechanism by which it would operate against the attorney general going forward? I mean tomorrow, you know, morning an agency presents a contract to the attorney general for approval.

[00:23:48]>> No, actually, your honor, 1421GA, the operation of our constitutional structure, provides that no approval is necessary from the attorney general in order for the governor to proceed. He can't block her from proceeding. That goes back to the the original question I asked about uh the application of laws to the governor's power to establish maintain that are passed by the legislature. Let's say you have uh conflict of interest laws or uh procurement preference statutes for local vendors. I mean, one could say they, you know, impede or restrict the governor's ability, but it would seem that those would be entirely appropriate areas for the legislature to legislate in. Similarly, here, getting a contract approved as to form and legality, you know, doesn't seem to have in in and of itself on its face a a constitutional deficiency. And I think you talked about this isn't a facial challenge to that law. Um, you know, or to the attorney general's statutory uh role. Um, but it's you I thought argued that it's this general applicability that's being applied in a manner that's contrary to this act >> to the constit uh to the organic >> organic act powers.

[00:25:14]>> Yes, your honor. So with regard to these um hypotheticals which are endless of course. So in the event of like a conflict of interest law for example that's passed the argument will always go back to Perez and what Perez requires. It has to materially interfere with the performance of the governor's duties. So one of the you know the legislature goes on for pages on this topic is rather whether or not general procurement law applies and uh 504 applies and we're not contesting that at all. In fact, our problem here arises from the fact that we're complying with procurement law and we ran up against a wall uh in the form of 5150. We're not saying that the governor is not subject to general procurement law. That doesn't prevent her from the fact that she has to issue an RFP doesn't prevent her from procuring. It might frame, you know, the way that she performs this power, but there's no wall. It doesn't require prior approval from another non-constitutional I mean he's a constitutional actor but in this case he's acting pursuant to statute. It doesn't require procurement law in general doesn't require the governor um to to stop her actions in order for someone else to determine whether or not she can move forward. So she can issue an RFP today. That doesn't stop her. So, so what remedy are you asking this court to fashion that uh will trump all that and that uh it will totally prevent any actor uh from um usurping the governor's powers um and in the guise of um that the review is limited to um legality and as to form I mean how is it that we're going to fashion such a remedy Mr. Travis.

[00:27:03]>> Uh, your honor, a couple things on that issue. First, legality and form. Really, any anything that requires another actor to to pre to prior, you know, to give prior approval to the governor's action, whether it's legality and form, whether it's as to substance, I I'd submit that if it were as to substance, the court would have no problem. It's the fact that it really seems on its face that it's not really a a burdensome or cumbersome law. The problem is that whatever it is he's reviewing it for stops the governor's action without a court order. And that's where our problem lies, your honor. And so the the remedy the remedy the declaration that we're seeking from the court today is first we would like the court to reaffirm its finding in in Ray Leon Guerrero one which is supported of course by 50 years of case law in the ninth circuit that says that the governor's specific act uh specific organic act power under 1421 controls over the general power including subject to the laws of Guam the phrase in 1421G GA um that vests power in the legislature. That's the first one, your honor. And the second one is the Paris rule, right? Where does this does this particular statute 5150 materially interfere with the governor's power? And we would submit that yes, because it blocks her it actually blocks her from executing the very contract she needs to exercise the powers given by 1421.

[00:28:37]>> So, let me just stop you there for a minute. So say we do that, say we issue um such an opinion that makes those declaration and then we have um the attorney general as an actor reviewing a contract and just uh goes through a checklist and say uh the contract uh is is uh illegal uh and um both as to its um legality and and form and and so we've done our part. What are we then to do where when the attorney general um interprets it in a different way and then goes about exercising his discretion in applying those um elements, >> we would submit to the court that the attorney general should not be given the authority. He should not be given the discretion to block the governor's contract. I don't think he needs to sign this at all. But we've issued our declaration, our opinion. Um, uh, we're we're not, uh, there there needs to be an active case in front of us before we can enforce, uh, the provisions of our ruling.

[00:29:53]>> I understand.

[00:29:54]>> And in the first instance, I we're hoping that the trial court will do that. Um, but you know, we've done our part and and you're saying that that should be sufficient to stop the attorney general from doing what he's doing. But what if it doesn't?

[00:30:09]>> Your honor, we don't actually believe that the what will result from here is some action on the attorney general's part. The rule that we're looking for here is that the attorney general's approval is not necessary in order for the governor to proceed. that the requirement of his approval is inorganic.

[00:30:28]>> See, that's that's where um there's some red flags in my mind, Miss Travis. And that's where I think we're starting to talk about absolute power. Um total usurpation and um I can do nothing wrong. Uh just trust me, that that's a hard sale for me. Your honor, if I may, what what I was what I was starting to discuss when we were talking about the rule that we're asking this court to find, it's not that the governor can just do whatever she wants. It's really that if someone seeks to enjoin her from doing that, it has to come at an order of the court. So, the governor proceeds with her organic act power like the legislature did when they passed 5150.

[00:31:14]And if someone thinks there's nothing preventing the attorney general from reviewing the contracts for legality and form, that's what he wants to do. And he finds a problem and he sues the governor and he asks the court for a temporary restraining order and a preliminary injunction keeping her from executing these contracts or acting on these contracts. That's the problem here, your honor, is the court is removed from this mechanism.

[00:31:40]>> But Miss Travis, that's within his right. if he if he disagrees as to uh whether or not uh the governor is acting within the scope of her authority under the provisions or the organic act in this particular case under the provisions of 5150.

[00:31:59]Um it's totally within his right uh to seek a determination from the court.

[00:32:06]That's what the courts are there for.

[00:32:07]>> Yes. And your honor, our position is that that's what he should be required to do. He should not be allowed to unilaterally block it. He's he's not this quasi judicial body that can determine the legality of the governor's actions. He should be required, the same as a governor is here, to go to court and determine whether or not his validate his legal analysis, your honor, to determine whether or not the whether or not the governor's actions should be enjoined or stopped in any way. But I'm I'm not understanding how is it that we become involved in litigation strategy when you know we've made our pronouncements and we've we've issued the declaration that you're asking for but um the attorney general then uh decides that he's going to put the burden the onus on the governor uh to stop him. And your honor, it shouldn't be the burden should not be on the governor to ask for permission to perform her organic act rights. If somebody wants to stop her from acting, someone should go to court and sue and get an injunction. We're not asking the court to, of course, this case ends when the declaratory judgment is issued, but the procurement proceeds. And if the attorney general believes because he's no longer required to approve contracts, he looks at the contract and he says, "I think that this is inorganic or unlawful, there's nothing preventing him. As your honor described, he has full rights to go to court and seek an injunction." And that's what we're asking the court to pronounce here today. It he's not authorized, neither does the legislature. They can't delegate it to him. They are not authorized to materially interfere with the governor's right or authority under 1421GA to establish hospitals. That doesn't mean that they can't get a pronouncement from the court. The court is the sole arbiter, the ultimate arbiter of the law in Guam. If the governor is violating the constitution, the attorney general is not the is not the appropriate entity to determine whether or not the governor should proceed with exercising her organic act authority. That is reserved to the sound judgment of the court in Inry Leoner 1.

[00:34:23]This court was asked the same question is so the governor has power over quarantine. Can the court what what's the court's role here? And this court said, "Of course, we have the inherent authority to review these the governor's actions for constitutionality." And that's exactly what we're asking for here. Of course, the courts are going to have the power to the inherent authority to review whether or not the the governor's actions are consistent with the organic act. But short of that, the legislature cannot confer that power unil to another unilateral actor who does not fall within the chain of command of the governor. So, your honor, the rule that we're asking for here is simple. We're not trying to block the attorney general from from reading the contracts or even from disagreeing with the contracts. We're asking for a rule that doesn't allow him to act as the court and block our contracts based on his own interpretation of legality and form or anything. Whatever reason, we don't require it to be a nefarious reason.

[00:35:29]>> I'll extend the argument 10 minutes for each side.

[00:35:32]>> Thank you, your honor.

[00:35:36]Miss Travis here. The the question is whether the attorney general has refused to act on these contracts or has disapprove them by not signing them.

[00:35:53]What is what is the basis of his action?

[00:35:56]Do you know?

[00:35:57]>> Your honor, the attorney general has announced that he is not going to approve any contracts related to the hospital. In fact, he has threatened agencies that he will prosecute them for even issuing an RFP.

[00:36:10]>> So earlier, uh the governor brought a case and we ordered that if the attorney general refused to do his job, the governor could appoint a special prose or special attorney general.

[00:36:25]>> Yes, your honor.

[00:36:25]>> Isn't that the solution?

[00:36:27]>> No, your honor. The rule that was announced in En in Leon Guerrero 3, which the court issued in December 2024, is that the attorney general either has to unilaterally voluntarily withdraw from representing the agencies in order for the for the governor to appoint a SAG. Alternatively, the there there can be a formal determination of his unavailability and unfortunately that also requires the governor to go to court. So again, we're back to the same issue. who has the power to prevent the governor from exercising an organic act right and our position is it should be the courts. It shouldn't be some unilateral actor conferred with some authority by the legislature who also doesn't have that power.

[00:37:19]>> Okay, you can reserve the remainder for rebuttal.

[00:37:22]>> Thank you your honor.

[00:37:25]>> Mr. Phillips, you have 40 minutes.

[00:37:33]>> Chief Justice and Justices, thank you.

[00:37:38]The case, your honor, that uh you had just referred to.

[00:37:44]While it's true the headings don't say that uh the actual language resolves I think the situation here because it says where such a public officer in this case the AG refuses to act which sounds like that's what we saw in the newspaper is unccapable of acting or is unavailable for some reason the agencies cannot be left without representation.

[00:38:14]the the court dealt with that specific situation I believe but even if it didn't I think a reading of that case is very similar to a reading of I believe it was Kamacho vim Mouan when I'm sorry no it was the airport authority that that sued the same general general Moyen in his first term and that initial principle came out that in my words it's a ministerial duty and yes he may be performing a high level review, but it's still ministerial because he has no discretion. Is it legal or not? Does it conform or not?

[00:38:51]>> But what about the idea that it forces the governor to go to court um versus having the attorney general go to court?

[00:39:00]and and your brief conceds that the attorney general's refusal to approve the contracts operates as the functional equivalent of a injunctive relief without judicial authorization. So, and by admitting that, haven't you then uh admitted the first prong of the Paris tests? And if so, what's the overriding constitutional need that justifies a non-judicial officer uh exercising what amounts to injunctive relief without ever satisfying the standards for injunctive relief? in a in order uh Justice Torres of your your points. Number one, no, because of uh the first case, the airport authority versus General Moan, they made clear that if he does something like that, he says, "I'm not going to sign it." That doesn't result in what would later take us to the Paris test because you have a government officer not performing his duty. It is unfortunate, but but the remedy is as as Mr. Travis has conceded to go to court, but it's not because of the law. It's because of because of what might be referred to as a bad actor or or somebody gone rogue or somebody that just believes that uh that their opinion is right and they differ with the governor. I mean you go to the Paris test the first prong of course is whether or not >> and that may be true if it involves a statute other than 1421ga where you know the governor has this other authority because here you're requiring this nonconstitutional actor um the governor to go after him to bring a lawsuit against him to exercise her powers under the organic versus you know it's not a scenario where those enumerated powers are not specific and and like in a different statute in some other other than the establishment of a hospital.

[00:41:04]>> Well, not necessarily the manner in which he's chosen but the constitutionality of of the attorney general I think is is clear. He it's a created office by Congress. it's it's placed in the executive branch and it does create uh you know at times an amazing conflict. You didn't see that with the previous AG and you may not see that with the next AG but that's also part of our uh our democracy. But with regard to as applied um justice that can't be a reason uh especially in a case like this for striking down a law that's a reason for striking the behavior of an actor that's not conforming according to law or conform or or acting in a way that's contrary to law. But the the AG this AG has already been sued and I think two years ago um this court took care of that situation and I think would easily be applied by the trout court with regard to the guidance given section 4 um made it very clear. Now, it it's true there are different words at different times used, but whether he called in sick, went to Hawaii, or or any other excuse he gives, if it's truly and we're we're submitting for purposes of of this case that the governor's representations and predictions are true because you you granted jurisdiction, so let's solve it.

[00:42:33]And and the truth is, uh presuming everything they say is true and the AG is just not going to do anything. Well, in Ray Leong um and it deals specifically with General Mian that applies. I think the language is there but if it's not then then the ruling of the court >> I guess the governor says the difference is in one scenario you're forcing her to go to court. In the other scenario it requires the AG to go to court and stop the governor's exercise of her organic act power. And the power is specific under 1421GA.

[00:43:08]And so why doesn't that flip the separation of powers on its head and let the attorney general go in and try to stop the governor's exercise of the power and um and because if if the legislaturator's admission satisfies the first prong of the Paris test, then we have to have an overriding constitutional need that justifies uh the exercise of what would essentially be injunctive relief by the AG not exercising his uh his duty and without satisfying the standards for injunctive relief.

[00:43:52]That actually is correct your honor except the problem would be unlike the YTK case where we were able to point to something that was contrary to law.

[00:44:02]Pangan number one and two where you know someone outside of the AG's office again came in and said but that that's against the law. It would still require this law to be in place for someone like me to come in with the senator or somebody and say hey the governor's you know violating the law. So that still shouldn't result in the in the elimination of the law. I understand and and read about the >> and I don't think that's that's the argument. It's not that it's uh facially invalid. In fact, I think that its application to other than 1421GA could clearly survive uh because there's not this specific enumerated power contained in the organic act. So that that to me isn't isn't an issue in terms of that. It's it's how the u refusal to approve the contracts essentially operates as injunctive relief preventing the governor from exercising her duties without a court's authorization.

[00:45:06]and and that is correct uh your honor except the court addressed that in the last Leongo case where the court held if he's not going to step forward and represent these agencies the governor can go ahead and appoint the this court went as far as talking about procurement I believe and so at the end of the day it cautioned the governor now don't don't use your own counsel to get separate counsel and again that's not removing the law that's removing for purposes of this case a bad actors somebody that that doesn't want to conform. And just as it's very different, for example, from the the Nelson case where they removed the power from the governor, they weren't regulating it. They they turned it over to an elected school board. At the time, they didn't have the authority to do that. And in Berdalu v. Bulgman, they stripped the governor of power uh regarding the hospital, but a board was not found to be illegal. And so in Bali v Baldwin, that was the problem. But they could still regulate to some extent and and some would argue under that same section that there's no way that a legislature could create a method of governance such as an autonomous agency and board. But but they have and um with all due respect, Justice, the first portion of of that uh uh what used to be called superpower um says subject to the laws of Guam. And so it's it's very clear that subject to um as long as it doesn't materially as you've held in in people v Paris doesn't materially impede a constitutional uh right in this case it would be the governor's right to establish hospitals and oversee public health. That is only here, your honor, because of the fact that we have a certain person in the AG's office that is just saying, "I'm not going to do anything." And I I totally disagree. At least that's what he said in in the newspaper for purposes of this case. I don't doubt it. I'm not arguing. I think we have to deal with that. But that is uh uh General Moyan. Uh it wasn't the the general before him, and maybe it won't be the one after. But if it's not him, it could be DOA. It could be EPA, it could be somebody else. Um, that is the problem. The the governor's conceded that their argument is as applied, but there's no case authority for that. And I think that's simple because you remedy it like the airport authority did when it first sued uh uh then General Moen and and Governor Gong, excuse me, did a couple years ago. And this court gave that remedy a a very long opinion addressing different aspects and a a great concern of the governor. Obviously the agencies needed legal counsel and so rather than stripping that obligation or saying oh none of these rules apply to you um the court took the time and the effort to explain that if and and uh Miss Travis is correct. There's one quote um regarding what she said, but I I found another quote in the opinion that made it very clear if he refuses to act. That's clearly what he's doing now.

[00:48:23]I I can't explain why two years have gone by and and nothing's happened. But I I would respectfully submit to the court that the the urgency, the emergency can't be the terms of of a federal grant. um because you know we're not living up to it because that that would leaves the court no longer subject to the laws of Guam or organic act but but but uh federal not not the the terms of the of the grant but the fact that there's a date that we're not meeting or other uh requirements that the legislature just says that's not the way our go our government's going to run.

[00:48:59]It's about governance. It's not about uh eliminating the governor like in Baldwin and and Nelson va.

[00:49:06]>> So you think that any risk that uh continued delay resulting from the AG's inaction um if it causes the loss of federal funding that should not enter into our constitutional analysis.

[00:49:22]I think uh justice that what uh the court should confine itself to is whether or not he's correctly applying Guam law and that would be is it legal and did they follow procurement basically is is what it is and I would submit if he's announcing ahead of time he's not even going to play the game I don't think the governor has to go to him I mean they can confirm are you serious you're not going to do it and if he says yes I don't think they need to waste any They don't need an injunction or anything. I think now the burden is on him because this court's already ruled.

[00:49:57]If he doesn't want to act doesn't or or can't is unable to act or refuses to act then the governor can act. Then the burden is on the AG. But still the laws are in place. Will they follow procurement? The court was very careful to say make sure you don't use your own counsel have somebody else. So uh another small point um justice is is that >> that didn't that didn't address 1421 GA right there's a distinction I think in my mind between how uh that uh applies when you have a separate uh organic debt provision with an enumerated specific power versus you know general application of the governor's powers elsewhere.

[00:50:44]Yes, it it is different uh justice, but I don't think that the the application uh that portion of it makes a difference when you say subjects to the laws of Guam and then the application by a bad actor uh cannot result in the court stripping the the law otherwise and and it's uh been pointed out for example in divorce cases involving switching of community property, you could have a couple bad actors here on purpose and they get rid of laws and that's just not how you do it. and and that can go on to I don't think anybody actually envisioned or I should say I did not envision uh General Moan maybe be behaving the way he's been but I can see that we could have the same uh behavior from somebody else in the executive branch and every time that happens especially when it comes to to public health or or maybe even an emergency situation that the laws in place are then deemed to be inorganic. The other way to look at it is you know what would be so difficult last two years or even now um with the governor appointing nominee not not even nominating she gets to appoint hiring attorneys to do what the AG is supposed to do get the opinion but do it legally there's no reason to wipe out procurement and to wipe out contract approval just eliminate the AG and that solves the problem that they they have and I think there's a a good question, but I think the burden uh Justice Storage is is really on the AG. If he's not going to come in, he didn't try to intervene. I think it's kind of like the way this court handled it. You ignore him. And so, I'm sure you you can take judicial notice. We're down in federal court battling him um in this case. And and uh the court just decided, well, you know, we're going forward and and I believe you're doing the right thing.

[00:52:39]And that's really what the governor should do. um just say, "Okay, you made it very very clear that you're not going to render a legal opinion. You're not going to perform your duties. Um and so I'm going to go ahead and hire attorneys to give me that opinion to make sure that I'm complying with with procurement."

[00:52:57]the the court's been very clear in in uh other cases actually I believe with with all due respect that the governor's successes before this court have done everything but you know open that door that that uh the governor now just needs to walk through because all the cases have have been in favor of the governor with regard to what what uh would need to happen here today that is the the AG's uh duties are really ministerial bill because they're spelled out. It's is it legal and does it conform? And if it is, and that's what we would want anyway, I would hope even with the governor's attorneys, we we don't want to remove that law. And so, I think the court and and uh uh with all due respect, maybe maybe uh justices, not all of you agree, but I think the court's already resolved this when it it went through in that section 4 and said talked about the hypothetical and you know, call it dicta. Well, I I call it, you know, guidance and and that's what, you know, we appreciate from from the court. It's very clear that if the AG does what he's doing, um that the governor is able to go around him, I don't think there's any case needed.

[00:54:10]Now, if she does that and the and the AG has a problem, I think that complies um Justice Torres with your your question and and Miss Travis with with her point, and that is let him sue. But, you know, he won't have any grounds to sue if you remove the law because then the procurement laws don't apply and and the contract laws don't apply. And so, I don't hear that. I you know and maybe I'm wrong but but uh I don't think that we're at that point where we're going to remove the contract uh laws or remove the the procurement laws and and it's true um with regard to the enumerated powers it it does spell out uh the hospital but subject to the laws of Guam justices also include everything from land appropriations uh uh fiscal responsibility oversight uh everything that that deals with confidence and and transparency, ethics, all all those things that you could someone could argue they get in the way of the governor administering her enumerated powers. But again, that that goes to how you do it. It goes to to governance. It doesn't go to whether or not she has that power. There's no doubt that uh she has this power. And there's no doubt that if the situation is as um the governor has described to the court, you've already dealt with that in in the earlier langu.

[00:55:38]I would rest on that unless anybody has any questions.

[00:55:41]>> I I maybe shouldn't ask this question because it wasn't argued, but it's been held that the legislature has no power to appropriate federal grants or federal funds.

[00:55:55]Can that go so far as to say the legislature has no power to restrict how the funds are expended in terms of the procurement laws and so forth.

[00:56:09]>> Yes. Not the purpose though. So if if the Congress and its infinite wisdom decides that for example it's going to go to a landfill or something like that, those dollars go to the landfill. But the the neutral laws which apply to everything, they govern our governor. I mean, that's uh uh the governor is that the governor of Guam paid by by tax dollars and everything. And whether or not it's federal funds, it it's governed by, for example, the governor is not able to go out and behave. I'm saying she ever would, but behave in an unethical manner or give contracts to to people that are not authorized under law. And uh you could go on and on. You don't even need to have a contractor's license, I guess, because that would kind of impede, you know, what the governor wants to do. All it means is that the source of funds and the purpose already dictated. The legislature didn't appropriate those funds. So, that part is taken care of, but not the the rest, justice. I believe that the legislature still has its organic tax powers and the governor still complies with her organic attack duties.

[00:57:14]So my understanding here that and I may have misread it was the contracted issue is an agreement that the Guam power authority would set out do some work in Manila is the fact that it's an agreement with another government agency for the expense you know can we view this as she just transferred the money to Guan Power authority and then they do what she's asked or does Does it really have to go through the approval process?

[00:57:46]>> It still does. Um, justice, the the question, I guess, maybe could be um will any of those attorneys that that that are not um right underneath the governor issue an opinion that that the governor or who'sever managing these funds has complied with procurement and contract and and that would be it. I still think that's if if the the governor takes the option that this court has given and the resources available to her, I think then the burden is on the AG. Um but he wouldn't have in my opinion a case because he didn't do it. He doesn't want to do it.

[00:58:26]He would have a case only if the governor didn't comply with procurement and and the contract regulations and and that would be it. But that would be anybody. It has nothing to do with the EG. that that would be anybody. The governor's not taken that that option.

[00:58:41]Um, but of course, you know, I'm not here to give her legal opinion, but I think sure as long as she receives that, that's what the law requires. And of course, at times, um, you know, we have case law. And in this case, the court was very clear to point out that, uh, distinction between her attorneys and somebody else. And so I I think this court's made it very clear what she can do in terms of a remedy.

[00:59:09]>> But let me just see if I understand uh Mr. Phillips your suggestion or your response to the chief justice question.

[00:59:17]The contract um was with the Guam Power Authority to put up power poles in Milao and and there were um there is the requirement that the contract entered into be reviewed as to Galileadian form and if if I understand what you said, if if the um attorney general refuses to do that, then maybe the Guam Power Authority lawyers can just um provide its opinion that the contract is legal as to as to both form and legality. Is is that what you're saying? That would satisfy >> it's procurement and um the form uh justice and the procurement requires uh the uh the attorney to one have monitored and and two to give that final opinion that that that procurement has been complied with. And so in my opinion whether that attorney is hired by the governor or existing somewhere else I think the the court was clear to point out that it just can't be well number one it must be an the person obviously must be an attorney but two must not be under the the direct control of the governor and so you know there there's maybe two or three different options that could take place >> but but how would that comply with say for example in the this specific case 51 150 where there is clearly specified that it's the attorney general's role to carry out uh this type of review. You can't just ignore that. I mean, if you were in the bond market and you the AG refuses to sign and you get the governor's lawyers to just, you know, provide that legal opinion, I'm thinking that maybe the bond the trustees are going to say, "Wait a minute now. Uh, I'm not going to issue an opinion that um that all um proper steps were taken in the issuance of of the bond. And so I'm I'm not understanding how just getting substitutes will satisfy the requirement when there is specific language in the statute that says no, it has to be the attorney general.

[01:01:35]>> Well, the the court's already dealt with that in other situations. In fact, it was Governor Leon that basically sued the attorney general to to get him to do his job and and this court wrote, "Well, you know, if he doesn't then and and we can start off with with him hypothetically performing his job and and he rules it's illegal, the governor can still come to court and say in in in essence that he was incorrect and and still prevail." I know >> that that is correct that there is a distinction between disagreeing with what the AG has done and him not acting at all which is the vacuum that that that uh source of opinion was meant uh to um address and not that if if the governor disagrees with the opinion or the their his her legal counselss um then then she can go and and and and seek seek an alternative um source uh to provide that opinion.

[01:02:37]>> Well, just as the the decision that this court handed down two years ago has not been touched by the legislature. They they didn't disagree with it. They didn't come back and say, "Hey, wait a minute. Give him a second chance." Maybe like there's, you know, innocence.

[01:02:50]>> I and that's that's a good thing. But uh what I'm saying is that uh the factual circumstances of when the governor has the option to then go and seek a special assistant attorney general is where he refuses to act. Not that she disagrees because if she just disagrees then she can't go out and find someone who may agree with her.

[01:03:19]>> Discret she would have to come to court.

[01:03:22]Yeah, that's you know and as I said u uh in a number of cases but for example um uh justice carbal we may remember in the YTK case the AG had ruled two times that the contract was fine but you know uh we at the court uh felt differently and left it to the courts after arbitration and I believe you authored the final uh decision that's that's the way it goes but we would not have standing to raise those arguments if the laws were not in place in that case the law with regard to land and the legislature if that was not in place so there'll be nobody coming forward if if you strike down the laws and to say well we're just going to get General Mlin out of the way uh again that that could be anybody I mean next will be DOA anybody that that that stands in the way the problem is not with with uh General Moan individually or more importantly his office which is constitutional it's the fact that he's just deciding like like your honors, if you just didn't come out today, what am I going to do? I mean, at the end of the day, if you have somebody that's not going to act, it's not the the law, it's not the organic act, it's the actor. And I think you've taken care of that in in the first Leongo case and in the airport case, I should say.

[01:04:42]>> Is he a really unable or unwilling to act? I mean, I think he'd take the position he's acting in the manner that is expected of him, and he's not going to approve this because it's not in compliance with legality or form. And until it is, he's not going to to take uh the action. So he's not really unwilling or or unable to act that requires the appointment of a special prosecutor under our ex, you know, extraordinary circumstances where uh he's expressed, you know, publicly I'm not going to act in this scenario.

[01:05:19]That's not this case right now.

[01:05:22]>> Justice George, I I think you're correct. And for purposes of uh our argument, I wanted to presume that that uh Mr. Travis representations. And really, you're correct. Their forecast was correct. But you're absolutely correct. I mean, that could just be a who knows, maybe it was an incorrect quote or or or something, but it could be his way of saying you've got to be kidding. But that doesn't mean you're correct that that when the time comes, he's not going to perform his duty. And maybe, you know, he'll he'll argue that it's it's uh not legal for some reason and the governor will have to come in and and show um uh the trial court or yourselves that no, in fact, it is legal.

[01:06:00]>> Is there is there a process um any mechanism uh for the governor to override or bypass the attorney general short of obtaining judicial relief?

[01:06:16]I believe um Justice Torres that >> in order to protect her enumerated power under the under the organic act >> but not always but I believe that uh for example in in Nelson be added the question would have been well what if the board just sits there well that the governor can act that the governor now has the authority to appoint the the head of education and um you know I can't forecast what the board members are going to do if they're not going to leave the rumor or something like that, but they no longer have the power. And it's it was that way in Baldwin and I believe it's that way in uh in Kamacho v uh I'm sorry I keep making that mistake.

[01:06:55]The airport authority versus General Moland and two years ago where the courts decided no, the governor has that power. I don't think she has to to to do anything more. But I do believe that your point is very well taken that they first have to really um get that uh official statement from General Men.

[01:07:15]He's really not going to act and or um especially in a case like this. I I understand the the time limits if he makes it clear he's deliberately not going to act within the time frame or the governor has good faith belief he's not going to act in the time frame. I think that that section 4 of your opinion takes care of that. That's arguable and maybe he'll go to court or maybe the governor will go to court, but you know that that's democracy and uh it's it's tough but you know it it works.

[01:07:45]>> So what what time frame are you talking about? Do you have any suggestion as to what's the reasonable time frame that um maybe this court could think about or what uh >> Justice Carbu I think we've all dealt with the the AG's office uh in the past.

[01:08:01]were looking for opinions. There was a time when they were saying it would uh take maybe 6 months and and those uh representations of course are unofficial but that's what they would tell departments. That didn't mean you weren't going to get anything in 6 days.

[01:08:17]I I never saw that. uh but uh it it it can take long and that's why in a case like this I think it's fair that uh number one the AG has made statements and number two the governor is pointing out hey I have a time limit and so it would be like really any other agency saying no this needs to go first and they're correct and and it's not just a a good faith belief it's it's true I think that that's something that the courts would take into account when for example If General Morland were to say, "Oh, I'm reviewing the EPA contracts first. You stand in line." I I would submit that based on number one, the governor's powers as as uh we discussed earlier, and number two, the fact that uh the law uh is in place that we try and read it in a way that that that it works. And the way it would do that, I believe, is when you're giving the governor the power, the power, excuse me, to hire an attorney, I think the general um expectation is maybe 45 to 90 days you would you would have that that uh that review in place. Now, if >> so maybe that's something you can suggest to your client.

[01:09:33]Well, again, the the question is whether that needs to be there in order for the governor to be able to comply. And I would suggest that Enray Leonguro says no, it it's not. If the AG's unable to act, we've already gone through that scenario, which would be the scenario.

[01:09:52]Um, Justice Carbido, I believe you're you're presenting. He he just can't do it in time. Well, that's what it says.

[01:09:59]Unable to act or unwilling to act. you you've taken care of that. And so if it wasn't clear enough in uh the airport versus Moan case where he's refused to act, um it was made very very clear in in 2024 when he said unable or unwilling to act. But you're not striking any laws. In fact, there wasn't even a claim back then or mentioned um uh by by yourselves that that there was a question of constitutionality. The governor went to the legislature to ask for an exemption. she didn't get one.

[01:10:32]That's a, you know, that's a political remedy. But as far as legal remedies, this is the the first time that the the statutes ever have been alleged to infringe on unconstitutional I mean unconstitutionally on on her powers. And that's just that's just not the case.

[01:10:49]It's the actor that is deciding and he could decide it for anything. Um deciding that he's not going to act. For purposes of this case, we're going along with that hypothetical. But I agree with Justice Torres that that would first have to be made clear uh before uh the governor just goes out and and hires her own attorneys to do this work.

[01:11:14]>> Any other questions?

[01:11:16]>> Thank you, Mr. Phil.

[01:11:17]>> Thank you, >> Miss Travis. You have eight and a half minutes.

[01:11:25]>> Thank you, your honors.

[01:11:29]I wanted to make sure that um you know I mean my memory is not as great as it used to be and I assume Mr. Phillips who's you know uh head is full of different cases might also have the same problem but I want to make sure we get the language straight from the court's 2024 decision. Um, usually the attorney general should be effective should be able to effectively determine whether it is unwilling, incapable or unavailable to act. So the court goes on to say this in paragraph 74, your honor. Um the court goes on to say that in instances where the attorney general has not communicated his intent to withdraw from agencies, declared the attorney client relationship ended or advised agencies to find outside counsel.

[01:12:24]Uh the agency cannot simply hire independent counsel to handle all its legal matters. The agency must first obtain a formal declaration from a proper authority that the attorney general is unavailable.

[01:12:44]And also, we don't have to rely on my representations of what the attorney general has said regarding these contracts because I know Mr. Phillips is saying, "Okay, well, he's just unavailable to act. He's just, you know, unwilling to act." I I I don't think that this attorney general uh would probably say that he's not willing to act on this. I think he has a very clear opinion of this and wants to retain the authority uh given to him under 5150, but I cited it in my opening brief, your honors. Uh it's actually footnote one, an article in the paper. Um the AG has already promised not to approve any contract for the construction of the new hospital. So, this isn't just, you know, me kind of speculating about what the attorney general may or may not do.

[01:13:29]>> Did he communicate that to the governor or say he disapproved the contract?

[01:13:34]>> Uh, no, your honor, he has communicated that to the legislature and he has communicated that, of course, to the general public through these news reports. Um, and as well, your honor, I apologize. Uh he also stated that government officials who certified funds for the MMC project would assume the consequences of the law because AG Mand considered the project illegal.

[01:13:59]So your honor, this isn't a case where the attorney general is refusing to act.

[01:14:03]That will then trigger the governor's power to appoint a SAG under Leon Guerrero 3. Um, and just as a fine point, a finer point to that correlary is, you know, we can't just go out and hire an attorney anyway to SAG because under the Guam procurement law, the attorney general has to approve the contract for any outside councils. So again just to recap under GIAA versus Min right it's true the attorney general's review was limited as to uh to form and legality but in that case in order to proceed with the the execution of that contract they had to sue him they had to get a rid of mandate Mr. Mr. Phillips saying, "Well, this is ministerial. No problem." Okay, great.

[01:14:50]Well, now the governor has to sue. So, again, it's ministerial, so the governor has to sue. The attorney general refuses to act, which requires a formal statement from the court, that she has to sue for that. And again, if she wants to hire an outside counsel because she on good faith reasonably determines uh that the attorney general is somehow unavailable to act on something he specifically said he would not approve.

[01:15:15]Um, well, she can't just go around him.

[01:15:17]He actually would have to approve those contracts as well.

[01:15:21]>> So, my my problem with Travis is um I'm I'm not um clear what pronouncements we can make to address uh those stalemates that we haven't already made in the other cases that have just been listed um by both councils.

[01:15:43]>> Yes, your honor. So under Paris actually it's a case-byase review and so the court does actually have to um review whether or not the governor's uh ultimate authority uh to establish a hospital is materially interfered with by 5150. So that is something that the court actually uh has not held in a prior case. Um, and if it does, then the court has to review whether or not there's a constitutionally overriding justification uh for that um proposed interference.

[01:16:15]So, those are uh case specific and I would submit to the court that in this case I think that uh it's pretty clear I I think that it's a it's a it's a pretty clear determination. I think Mr. Phillips has actually conceded that the attorney general's actions in this case amount to essentially an injunction without a court order.

[01:16:36]Your honor, we again are not proposing to strike down 5150.

[01:16:41]We're just challenging its application to 1421GA.

[01:16:44]So we're not talking about general agency contracts, etc. All those can exist. That's totally fine. It's the governor's power to establish, operate, and maintain hospitals under 1421GA.

[01:16:56]That's our problem here today. Now, Mr. Phillips says, well, there's no problem inserting another actor in between the governor and her powers. Look at Bdalio.

[01:17:05]Look at Nelson. There are boards who are operating uh to control, I'm sorry, to operate a hospital or education. In the case of Nelson, those boards are appointed by the governor. That was actually the problem in Bdalio. That was actually a problem in in Nelson is that the legislature sought to insert individuals into those boards who were not appointed by the governor. And in that in those cases, the Ninth Circuit said, "Hey, you can have a board, but you cannot. The legislature can't usurp the governor's power to control the hospital by putting their own people on the board." And that's what's happening here today. It's not as though 5150 is just concerned with legality review. Mr. Ford does all the contract review in my office. He can review this contract. No problem. He's subject to the governor's appointment powers for removal powers here. Despite, you know, the error in council's brief regarding the attorney general's uh, you know, role status as a as a constitutional officer, the attorney general is not subject to those powers. The legisl This is Bdalio. The legislature is inserting an actor in between the governor and her powers who is not appointed or removed by the governor. And that's the problem with council's uh characterization distinguishing this I'm sorry likening what their actions under 5150 to the bdalio case. And your honor DOA is under the governor's chain of command. Her entire cabinet, with a few notable exceptions, fall under her chain of command, but the attorney general does not. DOA puts up a fight. The governor has the power to remove him if he interferes with her 1421 GA powers, but she can't do that to the attorney general. And therein lies the problem.

[01:18:59]The governor does not control the establishment of a hospital because the legislature puts someone else in charge.

[01:19:06]But it sounds to me that the remedy that you're seeking requires a legislative change. Um I mean we're dealt with certain facts. We're dealt with certain language in the statute and um um you're asking us to make it a pronouncement um that um really ignores uh the local statutory provision. absent a amendment to that statute and and I'm just having difficulty um first of all understanding how do we do that um and and if you just have you know an attorney general that would just you know refuse uh to follow what's seemingly prescribed uh by the statute.

[01:19:58]Your honor, the way that the statute, I believe, uh would appear should the court indeed issue the the request that we're request. I'm sorry, the declar uh the declaratory judgment were requesting here today is that there would be probably a compiler note at the bottom that says this does not apply to the governor's 1421GA powers. We're not seeking to strike the statute. apply it wherever you like except for areas in which you're not allowed to interfere materially with the governor's powers under the organic act. This is a different power from the general things that the governor's is uh is exercising her general executive powers under the organic act. The legislature can't usurp it. Isn't that a policy decision in in reference to um what limits um are are placed on the governor in exercising her 1421 GA powers? Um you're if I understand what you're saying is um number one the governor will do nothing that uh would um make it such that it is not a illegal will she will act in a a legal manner in all instances and um just trust us for for that and um the legislature is saying well there's certain policies um restrictions that we wish to put in place uh and and not just you know because of the specific person it's it's the office itself that there there should be some limitations in carrying out those powers.

[01:21:44]>> Yes honor I have I have two points with regard to that particular uh issue.

[01:21:49]First, your honor, is that in Ray Leonerero 1, the court specifically addressed whether or not 1964 of the Emergency Health Powers Act were constituted um intelligible principles intended to influence the governor's policies which were assigned to her under 1421GA and the court determined that it was not because there they were making recommendations. But in 1960, they were substituting their own determinations.

[01:22:15]Um, and in that regard, the court said no, that that violates the Organic Act.

[01:22:19]And here, the attorney general is essentially vetoing, for lack of a better word, the governor's determinations with regard to how she's going to exercise her power. And that's what's not allowed under the law. And I just want to make a a distinction here between these contracts the governor is seeking to execute versus the straw man that Mr. Phelps is trying to set up with regard to a what if she wants to hire unlicensed contractors. Your honor, Perez resolves that. Does it materially interfere with her powers requiring her to hire licensed contractors?

[01:22:59]I mean, you know, of course, it's determined on a case-by case basis, but I would submit to the court that there's there's a pretty good chance that that's not going to pass muster as something that materially interferes with her powers. So, we're not talking about, oh, the legislature won't be able to conduct oversight hearings. Your honor, Perez resolves this. Perez requires that that violation of the organic act materially interferes with the governor's exercise of her duties. And in this case, it is like textbook.

[01:23:31]It is allowing someone else prior approval or veto power over the governor's execution of the very core contracts to execute or to exercise her power under 1421GA as opposed to something like conducting an oversight hearing which really has no impact doesn't prevent anything from happening or requiring her to hire licensed contractors which I would submit to the court under a parah's review I I think that there's a good argument it doesn't materially interfere with her powers under 1421GA and in fact your honors in general the procurement law we're trying to comply with it. So if I understand what you're saying is that um specifically S to 5150 the requirement of uh approving a contract uh as to its legality and form um in of itself usurps the governor's powers under 1421GA and regardless of who the actor is by its very nature by pro prescribing for those requirements uh that that um that um conflicts um competes with the governor's 1421ga GA powers and therefore that's the reason why it's in our county.

[01:24:58]>> Not not exactly, your honor. I think that the key here is that this person is not within the governor's chain of command in Balio. She gets to appoint the board, right? which is why it's fine to have a board that operates the hospital. The problem here is that she has no functional control over whether or not the attorney general is going to approve a contract. She can't remove him if he refuses to. So that does interfere with her ultimate authority to establish hospitals. So the only caveat then to that litany I just described is because in addition it's the attorney general that um is the actor that gets to make these reviews and and what about hypothetically if the legislature was to take out the attorney general requirement and put in the governor's um uh legal um attorneys uh that they provide that it's um that the contracts legality and form is proper then that because those actors are within the governor's chain of command uh that that would be um that would be similar to the cases you point out with Ball Baldwin Nelson.

[01:26:18]>> I would say that that's correct your honor that it does seem to conform with uh what's contemplated in Berdalo. It's not that the legislature can't can't appoint an attorney to conduct legality and review if that's really the concern.

[01:26:32]Um it's it's that it has to be >> short of the legislature uh cooper being cooperative. Well, I should use that word that they're not cooperative, but short of the legislature making that change. Um the remedy is for the court to strike this down because of those.

[01:26:51]Your honor, I believe it's it's to cabin 5150 to instances or cases wherein uh the attorney general is not sitting as a unilateral reviewer or monitor of the governor's specific organic act powers.

[01:27:08]This potentially is captured in the general powers of the legislature under 1423A.

[01:27:14]They can have an attorney review regular contracts. That's fine. The problem here is that they can't control over the governor's specific organic act power under 1421A.

[01:27:26]So we would cabin 5150 to those instances to those contracts that are not pursued under the governor's 5150 I'm sorry 1421GA authority. And again there's nothing preventing the attorney general. Mr. Phillips says, "Well, if you if you don't allow us to have this statute or apply it to 1421GA, then then who can sue the governor?" Well, the legislature can certainly under 4104.

[01:27:54]That's why we're here today. And the attorney general has a similar power to seek declaratory relief before the before the Superior Court of Guam. He has that power. And furthermore, your honor, there's there's nothing uh there's nothing preventing this court certainly from uh from ruling in the legislaturator's favor if they believe that that the governor has somehow unconstitutionally uh acted um in violation of her 1421GA authority. So there there are remedies.

[01:28:28]It's the entire government doesn't hinge on whether or not the attorney general can can approve contracts under 5150. Of course, the legislature uh can pursue litigation and of course the attorney the attorney general can as well and I would actually submit to the court there are additional things that that the attorney general probably has power over like illegal expenditures etc. Um and certainly he has sued in the district court of Guam for declaratory judgment to determine the lawfulness of some of the actions governor has already taken under 1421GA with regard to the MMC project.

[01:29:05]specifically uh he's seeking declaratory judgment on the story Bernardo issue of whether or not uh the federal funds have to be reappropriated by the legislature.

[01:29:15]He's suing on open government. He's suing on NEPA. Um there's a report and recommendation um dismissing his action but not preventing him of course from attempting to sue. And I think if he had standing in that case, who knows? You know, part of the court's uh report and recommendation was that he didn't have standing.

[01:29:40]Unless the court has any other questions, I'm going to arrest.

[01:29:45]>> Thank you, Miss Trump.

[01:29:46]>> Thank you, your honor.

[01:29:49]The court will stand adjourned and issue a written decision and order.