Counsel of Record Ricardo J

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Docket Nos. 13-16941 and 13-17089

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

GOVERNMENT OF GUAM,

Defendant-Appellant. ______

APPEAL FROM THE DISTRICT COURT OF GUAM FRANCES M. TYDINGCO-GATEWOOD, CHIEF DISTRICT JUDGE CASE NO. 02-00022 ______

APPELLANT’S OPENING BRIEF ______

SANDRA C. MILLER WILLIAM N. HEBERT OFFICE OF THE GOVERNOR OF JAY D. TRICKETT GUAM Counsel of Record Ricardo J. Bordallo Governor’s Complex CALVO FISHER & JACOB LLP Adelup, Guam 96910 One Lombard Street, Second Floor Telephone: (671) 475-9370 San Francisco, California 94111 Facsimile: (671) 477-4826 Telephone: (415) 374-8370 Attorney for the Office of the Governor of Facsmile: (415) 374-8373 Guam Attorney for the Defendant-Appellant on behalf of the Defendant-Appellant Government of Guam

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TABLE OF CONTENTS

INTRODUCTION ...... 1

STATEMENT OF JURISDICTION ...... 3

STATEMENT OF THE ISSUES ...... 5

STATEMENT OF THE CASE ...... 6

I. Background of the Guam Clean Water Act litigation ...... 6

II. The Receiver admits that its remaining projects are significantly over budget and will cost more than the remaining amount of the Consent Decree Funding ...... 8

III. The Attorney General refused to support the Government of Guam’s opposition to the Receiver’s planned use of the Consent Decree Funding ... 10

IV. The Government of Guam repeatedly requests substitution of counsel in order to meaningfully participate in the district court proceedings ...... 11

V. The Government of Guam brings multiple motions to stay and appeals the district court’s denials of substitution of counsel ...... 18

VI. The Receiver awards new contracts for the closure of the Ordot Dump which exceed its budget for those contracts by $26 million ...... 21

STANDARD OF REVIEW ...... 22

SUMMARY OF ARGUMENT ...... 23

ARGUMENT ...... 25

I. The district court abused its discretion when it prevented the Government of Guam from replacing its conflicted and disloyal attorneys ...... 25

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A. As the Government of Guam’s attorney, the Attorney General owed its duties to the Governor of Guam and his authorized representatives ...... 25

B. Notwithstanding its duties to the Government of Guam, the Attorney General began concurrently representing the Receiver ...... 27

1. The May 10, 2013 amended substitution of counsel was supported by unrebutted evidence showing that the Attorney General represented the Receiver ...... 27

2. The Attorney General then expressly admitted it represented the Receiver ...... 31

1. The Attorney General’s representation of the Receiver created a conflict of interest ...... 33

2. The Attorney General’s conduct revealed that its relationship with the Office of the Governor was completely broken ...... 35

3. Despite the Attorney General’s public abandonment of the Government of Guam, the district court refused to allow the Government of Guam to substitute new, loyal counsel ...... 36

4. The district court’s failure to recognize that the Government of Guam’s lawyers had abandoned it infected all of the decisions under review and should be reversed under the de novo standard ...... 38

D. The district court’s refusal to reconsider its prior rulings was also an abuse of discretion ...... 39

II. The district court erred by failing to conduct a meaningful inquiry into the Attorney General’s representation of the Receiver and potential conflict of interest ...... 40

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III. Orders issued by the district court while it prevented the Government of Guam from being meaningfully heard are void ...... 42

A. The Government of Guam was entitled to be heard with respect to the Receiver’s plans to procure new contracts to close the Ordot Dump that exceeded its budget ...... 43

B. The district court’s denial of the Government of Guam’s substitution of counsel prevented the Government of Guam being heard in subsequent proceedings regarding the Ordot Dump closure projects ...... 44

C. Proceedings conducted after the district court’s denial of the Government of Guam’s substitution of counsel are void ...... 45

CONCLUSION ...... 46

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TABLE OF AUTHORITIES

Cases

Allen v. Academic Games Leagues of Am., Inc., 831 F. Supp. 785 (C.D. Cal. 1993) ...... 25

Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010) ...... 3, 4

Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003) ...... 40

Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796 (N.D. Cal. 2004) ...... 25

Estate of Merchant v. C.I.R., 947 F.2d 1390 (9th Cir. 1991) ...... 22

Fuentes v. Shevin, 407 U.S. 67 (1972) ...... 42, 43

Gates v. Shinn, 98 F.3d 463 (9th Cir. 1996) ...... 4

In re Center Wholesale, Inc., 759 F.2d 1440 (9th Cir. 1985) ...... 24, 45

In re Farmers' Loan & Trust Co., 129 U.S. 206 (1889) ...... 4

In re Grand Jury Subpoenas, 803 F.2d 493 (9th Cir. 1986) ...... 22, 38

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Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990) ...... 23, 25, 34

Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) ...... 23

Lewis v. Lane, 816 F.2d 1165 (7th Cir. 1987) ...... 23, 40, 41

Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000) ...... 22

Manchin v. Browning, 170 W. Va. 779 (1982) ...... 27

Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194 (1993) ...... 44, 45

Santos v. Camacho, Civ. 04-00006, 2006 WL 581251 (D. Guam Mar. 10, 2006) ...... 26, 33, 35

Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) ...... 39

Stewart v. Gen. Motors Corp., 756 F.2d 1285 (7th Cir. 1985) ...... 25, 34

Stone v. City & Cnty. of San Francisco, 968 F.2d 850 (9th Cir. 1992) ...... 3

Strickland v. Washington, 466 U.S. 668 (1984) ...... 1, 23

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Trone v. Smith, 621 F.2d 994 (9th Cir. 1980) 32

United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir. 1990) ...... 4

United States v. McConney, 728 F.2d 1195 (9th Cir. 1984) ...... 22, 38

United States v. Moore, 159 F.3d 1154 (9th Cir. 1998) ...... 22, 38

United States v. Morris, 714 F.2d 669 (7th Cir. 1983) ...... 25

United States v. One 1986 Ford Pickup, 56 F.3d 1181 (9th Cir. 1995) ...... 4

United States v. State of Wash., 761 F.2d 1404 (9th Cir. 1985) ...... 4

Winhoven v. United States, 201 F.2d 174 (9th Cir. 1952) ...... 24, 45

Wood v. Georgia, 450 U.S. 261 (1981) ...... 25, 40

Statutes

28 U.S.C. § 1915(d) ...... 41

28 U.S.C. § 1291 ...... 3

28 U.S.C. §§ 1331, 1345, 1355 ...... 3

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33 U.S.C. § 1319(b) ...... 3

48 U.S.C. § 1421 et seq...... 44

48 U.S.C. § 1422 ...... 26

Rules

Fed. R. Civ. P. Rule 70 ...... 29

Fed. R. App. P. Rule 8 ...... 21

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INTRODUCTION

This appeal seeks to reverse a series of district court decisions that resulted in a complete breakdown in the adversarial process. The American judicial system relies on the contest of advocates zealously representing their clients’ competing interests before an impartial tribunal. The system also relies on judges to preserve the integrity of the process; “[i]n every case the court should be concerned with

whether, despite the strong presumption of reliability, the result of the particular

proceeding is unreliable because of a breakdown in the adversarial process that our

system counts on to produce just results.” Strickland v. Washington, 466 U.S. 668,

696 (1984).

In this case, the Attorney General of Guam represented the Government of

Guam for more than nine years in a lawsuit brought by the United States under the

Clean Water Act. After political gridlock prevented the Government of Guam from meeting deadlines established in a consent decree, the district court appointed an independent receiver to help carry out the consent decree requirements. The consent decree did not require the Government of Guam to provide the receiver with unlimited funds. The Government of Guam remained a necessary party, and the Attorney General remained its counsel of record.

Without informing the Government of Guam or the district court, the

Attorney General secretly began representing the receiver in 2011. When the

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receiver announced in May 2013 that the consent decree projects would exceed its court-approved budget by tens of millions of dollars, the Attorney General refused to take up the Government of Guam’s challenge to the receiver’s planned use of the Government of Guam’s money. Only then did the Government of Guam learn that the Attorney General had conflicting duties to the receiver.

The adversarial process clearly could not work if the Government of Guam’s own lawyers refused to represent its position. The Government of Guam promptly made a request to substitute counsel and informed the district court that the

Attorney General had a conflict of interest. But the district court denied the unopposed substitution without any briefing or a hearing. When the Government of

Guam moved the district court to reconsider and presented additional, incontrovertible evidence of the Attorney General’s conflict of interest – including explicit admissions by the Attorney General that it represented the receiver – the district court denied the motion. Instead, the district court ordered the receiver to proceed with its over-budget projects.

The district court justified these decisions by emphasizing the importance of completing the consent decree projects as soon as possible. But in its effort to eliminate any potential cause of delay to the completion of the consent decree, the district court lost sight of its responsibility to preserve the integrity of the adversarial process. As a result, the Government of Guam was systematically

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prevented from objecting to the receiver’s plan to impose more than $60 million in additional liabilities on the Government and people of Guam.

The Government of Guam had a right to participate meaningfully in the adversarial process leading to the court’s approval of the receiver’s new, more expensive plan for completing the consent decree. Without the Government of

Guam’s participation, the district court’s orders approving that plan are void. The

Court should reverse the district court’s orders finding that the Attorney General was unconflicted and denying substitution so that the Government of Guam can finally participate in adversarial proceedings regarding the receiver’s new plan.

STATEMENT OF JURISDICTION

1. District court jurisdiction. The district court properly exercised federal question jurisdiction under the Clean Water Act, 33 U.S.C. § 1319(b), and

28 U.S.C. §§ 1331, 1345, 1355.

2. Appellate jurisdiction. This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. The district court issued the orders under review after its entry of a consent decree. “A consent decree is considered a final judgment despite the fact that the district court retains jurisdiction over the case.” Stone v. City &

Cnty. of San Francisco, 968 F.2d 850, 854 (9th Cir. 1992). “[A]ppeals courts have

jurisdiction over post-judgment orders, such as a district court might enter pursuant

to the jurisdiction it has retained to enforce a prior order.” Armstrong v.

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Schwarzenegger, 622 F.3d 1058, 1064 (9th Cir. 2010) (reviewing post-judgment orders enforcing a permanent injunction against California state prisons). See also

Gates v. Shinn, 98 F.3d 463, 467 (9th Cir. 1996) (reviewing post-judgment contempt order imposing sanctions for violating a consent decree even though it was the fourth post-consent decree appeal in the case); United Nuclear Corp. v.

Cranford Ins. Co., 905 F.2d 1424, 1426 (10th Cir. 1990) (reviewing order entered three years after consent judgment because underlying controversy was concluded). “Unless such post-judgment orders are found final, there is often little prospect that further proceedings will occur to make them final.” United States v.

One 1986 Ford Pickup, 56 F.3d 1181, 1185 (9th Cir. 1995) (citing United States v.

State of Wash., 761 F.2d 1404, 1406 (9th Cir. 1985)); see also In re Farmers' Loan

& Trust Co., 129 U.S. 206, 213 (1889).

The orders under review involve the denial of the Government of Guam’s

request to substitute its counsel of record. The district court’s denial was based on

its findings that, at the time of the Government of Guam’s request, a conflict of

interest did not exist and any breakdown in the attorney-client relationship was

limited. The district court then denied the Government of Guam’s motion for

reconsideration. Under Ninth Circuit law, these post-judgment orders are

reviewable now as final orders because there is no prospect that further

proceedings will bring additional finality to the orders.

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STATEMENT OF THE ISSUES

1. Did the district court abuse its discretion by denying the Government of Guam’s request to substitute counsel where the Government of Guam’s lawyers

(1) concurrently represented the court-appointed receiver in the same case, (2) did so without consent, and (3) refused to follow client instructions when they were adverse to the position of the receiver?

2. Did the district court abuse its discretion by denying the Government of Guam’s request to substitute counsel (1) when it knew there was a possibility that the Government of Guam’s lawyers had a conflict of interest, and (2) without conducting a meaningful inquiry to determine whether a conflict of interest existed?

3. Are the district court’s orders imposing multi-million dollar contracts on the Government of Guam void where (1) the Government of Guam could only participate in the proceedings through its lawyers, (2) the Government of Guam’s lawyers had a conflict of interest and refused to advocate the Government of

Guam’s position regarding those contracts, and (3) the district court denied the

Government of Guam’s request to replace its lawyers with substitute counsel?

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STATEMENT OF THE CASE

I. Background of the Guam Clean Water Act litigation

In 2002, the United States sued the Government of Guam alleging violations of the Clean Water Act originating from Guam’s only municipal dump (the “Ordot

Dump”). The U.S. Navy built the Ordot Dump in the 1930s while it administered

Guam as an overseas possession. The U.S. Navy built the Ordot Dump without a liner or any other mechanism to prevent seepage of contaminated waste into the soil and groundwater. While it operated the Ordot Dump, the U.S. Navy disposed of large quantities of hazardous chemicals and materials, including live munitions.

In 1950, the U.S. Navy transferred the Ordot Dump “as-is” to the newly-formed territorial Government of Guam. The Government of Guam has dealt with contamination problems at the Ordot Dump ever since.

In 2004, the district court entered judgment against the Government of

Guam in the form of a consent decree (the “Consent Decree”). ER 1118-1197. The

Consent Decree required the Government of Guam to close the Ordot Dump and build a new landfill. The only parties to the Consent Decree are the United States and the Government of Guam.

Internal political gridlock and limited funding under prior administration resulted in the Government of Guam failing to meet the Consent Decree deadlines.

In December 2007, the district court granted the United States’ motion to enforce

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the Consent Decree. ER 1110-1117. The district court then appointed the consulting firm Gershman Brickner & Bratton, Inc. as receiver (“Receiver”) on

March 17, 2008 to assume the “responsibilities, functions, duties, powers and authority” of the Guam Department of Public Works with respect to solid waste and to carry out the projects necessary to close the Ordot Dump and build a new landfill. ER 1101-1102. Thereafter, the Receiver became an active participant in the litigation, often taking positions contrary to those of the Government of Guam.

In 2011, with the approval of the district court, the Government of Guam created a new autonomous public corporation called the Guam Solid Waste

Authority (“GSWA”). By statute, GSWA is a self-sufficient, separate, and distinct legal entity from the Government of Guam. GSWA was created to manage Guam’s new solid waste collection and disposal system. The district court placed GSWA under the Receiver’s control upon its creation.

Although GSWA is under the Receiver’s control, the Government of Guam continues to be a necessary party to the district court proceedings because it remains responsible under the Consent Decree for funding all capital projects. The

Government of Guam has already committed more than $200 million in public funds toward these projects (the “Consent Decree Funding”). ER 708. In 2009, the

Receiver reported that the Consent Decree Funding provided “full funding” for the

Consent Decree projects based on the Receiver’s court-approved budget. ER 956.

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The unspent remainder of the Consent Decree Funding is in a trust account from which withdrawals are permitted under only two circumstances: (1) upon the joint requisition of the Governor of Guam and the Receiver certifying that requested funds will be used for a capital cost of the Consent Decree, or (2) to reimburse costs already reviewed and approved as proper Consent Decree project costs by the district court. ER 884, 892-893; ER 970.

II. The Receiver admits that its remaining projects are significantly over budget and will cost more than the remaining amount of the Consent Decree Funding When the district court granted the United States’ motion to enforce the

Consent Decree, it also ordered the Government of Guam to condemn land for the new landfill. On January 24, 2008, the Government of Guam condemned several hundred acres of land at a site on Guam called “Layon.” On December 10, 2012, the former landowners of Layon (“Layon Landowners”) obtained a judgment of more than $25 million against the Government of Guam for just compensation.

The judgment exceeded the Receiver’s budget for the taking by more than $21 million, an amount that remains unpaid and accrues interest at six percent each year. ER 339. As of May 10, 2013, the Government of Guam calculated the total interest on the unpaid amount to be approximately $7 million and growing at approximately $110,000 per month. ER 703.

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The Government of Guam expected to use the Consent Decree Funding to satisfy the judgment. On February 4, 2013, the Government of Guam asked the

Receiver to requisition funds from the Consent Decree Funding for that purpose.

ER 910-917. But on February 7, 2013, the Receiver refused. ER 932-938. After the

Receiver announced that it would not agree to requisition Consent Decree Funding to pay the judgment, the Layon Landowners filed a motion to intervene on April

10, 2013.

Meanwhile, the Receiver neared completion of a design for the closure of the Ordot Dump. The Receiver had previously budgeted $40 million for the closure. ER 1038. On May 21, 2013, the district court held a status conference on the receivership and Consent Decree projects. At the status conference, the

Receiver disclosed for the first time that it expected the total cost of the remaining projects required by the Consent Decree to exceed the amount it had previously budgeted for several reasons. ER 684-685. First, just the construction costs for the

Ordot Dump closure would likely exceed the total amount of the Consent Decree

Funding remaining. ER 685. Second, the Receiver had failed to budget any amount for the Layon Landowners’ judgment – which would now cost at least $28 million to satisfy, including interest. Therefore, while the Receiver acknowledged that “the

[Layon] land cost is a capital cost of the Consent Decree,” ER 687, the Receiver urged the district court to deny the Layon Landowners’ motion to intervene so that

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funds could be preserved for the cost of the Ordot Dump closure, ER 686-690.

Third, the Receiver reported for the first time that the Government of Guam will separately be expected to pay more than $14 million for post-closure environmental monitoring of the Ordot Dump. The Receiver had also failed to budget any amount for this expense. ER 690-692. All told, the Receiver’s report revealed that the Consent Decree projects were likely to exceed the Receiver’s budget by at least $40 million. All of these unbudgeted expenses and cost overruns would fall on the Government of Guam.

III. The Attorney General refused to support the Government of Guam’s opposition to the Receiver’s planned use of the Consent Decree Funding The Office of the Governor of Guam questioned both the Receiver’s allocation of resources and its priorities given the massive budgeting failure revealed by the Receiver’s report. Prior to May 21, 2013, the Receiver had boasted in every report for nearly two years that the Consent Decree projects were almost

$30 million under budget. Now, according to the Receiver, these same projects were more than $40 million over budget. As the first step to challenging the contents of the Receiver’s report, the Office of the Governor of Guam instructed its counsel of record, the Attorney General of Guam (“Attorney General”), to support the Layon Landowners’ motion to intervene in the district court. ER 697-700.

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But on April 25, 2013, the Office of the Governor learned that the the

Attorney General agreed with the Receiver’s position against using the Consent

Decree Funding to pay the Layon Landowners’ judgment and refused to advocate

the Government of Guam’s position on the motion to intervene. ER 647-648. At

the same time, the Office of the Governor also learned that the Attorney General

had treated the Receiver as its client in the Layon condemnation case and had

asserted the attorney-client privilege on the Receiver’s behalf. Id. The Attorney

General had never previously disclosed that it regarded the Receiver as its client.

ER 232-233.

IV. The Government of Guam repeatedly requests substitution of counsel in order to meaningfully participate in the district court proceedings Upon learning of the Attorney General’s conflict of interest and refusal to

take client instructions from the Office of the Governor, the Government of Guam filed a substitution of counsel on April 26, 2013. ER 785-787. The request sought to replace the Attorney General with the Guam law firm Cabot Mantanona LLP

(the “Cabot Firm”). Id. But the district court denied the substitution of counsel on a technicality on May 3, 2013. ER 783-784.

The Government of Guam began preparing an amended substitution of counsel to comply with the district court’s May 3, 2013 order. But on May 9, 2013, without consulting with the Office of the Governor and against its explicit instructions, the Attorney General filed a partial opposition to the Layon

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Landowners’ motion to intervene on behalf of the Government of Guam, even though the Government of Guam’s response was not due until the following day.

See ER 770-782. The Attorney General also filed a privileged attorney-client

communication between the Lieutenant Governor of Guam and Guam’s bond

counsel. ER 749-751.

Sandra Cruz Miller, a staff attorney employed as Chief Legal Counsel in the

Office of the Governor, immediately filed an emergency notice of appearance, ER

722, and filed an alternative response to the Layon Landowners’ motion to

intervene the following day, May 10, 2013, reflecting a barebones version of the

Office of the Governor’s position, ER 697-700. Ms. Miller also filed the

Government of Guam’s amended substitution of counsel. ER 712-721. In

connection with the amended substitution, the Government of Guam submitted a

declaration from the Lieutenant Governor of Guam. ER 710-711. The declaration

described the Attorney General’s conflict of interest resulting from its

representation of the Receiver in the Layon condemnation case and explained that

the Attorney General and the Office of the Governor disagreed over the

Government of Guam’s litigation positions and strategy. Id.

The Attorney General, however, refused to sign the amended substitution of

counsel. ER 645. Instead, the Attorney General separately submitted an

“Acknowledgment,” which stated that the Attorney General had represented the

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“Government of Guam” in the condemnation action, but which also included a footnote to the term “Government of Guam” stating that the Receiver had been appointed to “manage, supervise and oversee the Solid Waste Management

Division” of the Government of Guam. ER 705-706. The Acknowledgment did not address or deny the conflict of interest and fundamental disagreement expressed in the Lieutenant Governor’s declaration. Id.

Six days later, on May 16, 2013, despite there being no opposition to the amended substitution of counsel and without affording the Government of Guam the opportunity to respond to the contents of the Attorney General’s

Acknowledgment, the district court issued an order finding that the Attorney

General had no conflict of interest and denying the amended substitution of counsel. ER 33-37. The district court further ordered that the Government of Guam would not be permitted to be represented by counsel other than the Attorney

General, except for the limited purpose of addressing the Layon Landowners’ motion to intervene. Id.

The district court’s order left the Government of Guam effectively unrepresented at the May 21, 2013 status conference with respect to the Receiver’s plans to spend far more than its budget on the remaining Consent Decree projects.

For example, when the Receiver requested at the status conference that its cost estimates for the remaining dump closure projects be sealed and withheld from the

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Government of Guam, the Attorney General did nothing to challenge the request despite its obvious impropriety. The district court granted the Receiver’s request without any additional briefing or hearing. ER 650-651.

The Receiver also used the May 21, 2013 status conference to interject regarding the Government of Guam substitution. The Receiver admitted it had been regularly directing the Attorney General to carry out its instructions. ER 686.

The Receiver then warned that “any limitation on the Receiver’s access to the

Attorney General will likely delay the final closure of the Ordot Dump and significantly increase cost.” Id.

On May 28, 2013, the Cabot Firm filed a motion for reconsideration of the district court’s denial of the amended substitution of counsel. ER 631-643. The supporting declaration attached letters from the Attorney General admitting that it represented the Receiver and had asserted the attorney-client privilege on behalf of the Receiver. ER 644-649. The motion asserted that the Government of Guam needed to be represented by loyal, unconflicted counsel that owed no duties to the

Receiver so that it could be heard with respect to its concerns about the Receiver’s proposed use of government funds and its impact on Guam’s public finances. ER

642.

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The district court expressly invited both the Attorney General and the United

States to respond to the motion.1 ER 627-630. On June 14, 2013, the Attorney

General filed its response. ER 318-330. The Attorney General admitted that it

represented the Receiver in its “official capacity” but argued that it had no conflict

of interest because “[t]he [Attorney General]’s representation of the Receiver in its

official capacity is effectively the [Attorney General]’s representation of the

Government of Guam and the government line agency [in receivership].” ER 324.

On June 21, 2013, the United States also filed a response stating its desire that the

Attorney General continue to represent the Government of Guam over the

Government of Guam’s objections. ER 301-317.

The briefing for the Government of Guam’s motion for reconsideration was

completed by the end of June. While the district court told the parties that it would

set a hearing date on the motion, no hearing date was ever scheduled during the

month of July. Meanwhile, the Receiver moved forward with its procurement of

contracts for the Ordot Dump closure. The Receiver submitted a special report to

1 This invitation illustrates how corrupted the adversarial process became in this case. The Government of Guam's request for relief was to replace the Attorney General as counsel because of a serious conflict; the district court wholly undermined that request by inviting the conflicted Attorney General to respond to the request while purporting to act as the Government of Guam's counsel. This also turned out to be the first of many instances in which the district court aligned the Attorney General with the United States against its own client. ER 262-264.

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the district court on June 28, 2013, disclosing that it expected to issue a Notice of

Award for the Ordot Dump construction contract in “Late September.” ER 299. On

July 1, 2013, the district court issued an order stating: “The court will not tolerate

any further delay of the closure of the Ordot Dump, and accordingly the Receiver

is directed to proceed with its time frame for the procurement process.” ER 296-

297.

On August 13, 2013, the Attorney General filed a “motion for clarification”

with the district court. See ER 285-295. The motion was made in response to the

Office of the Governor’s request to the Attorney General for the Government of

Guam’s case file and copies of the Attorney General’s communications with the

Receiver. ER 285-295. The motion clarified that:

1. The Attorney General had not represented the Government of Guam for some time; its only client in the district court since April 18, 2011 had been the GSWA, an autonomous agency controlled by the Receiver, ER 291;

2. The Receiver alone had the authority to direct the Attorney General because the Receiver controls the GSWA and exclusively holds both the privilege and the proprietary right to client files in connection with the case going back to April 18, 2011, id.; and

3. The Attorney General had no obligation to communicate with the Office of the Governor in connection with the case because the Attorney General’s only duties were to the Receiver, ER 289-290.

The Attorney General’s motion eliminated any remaining doubt that the

Government of Guam had been completely abandoned. At the time it was filed, the

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motion for reconsideration, although it had been pending for more than two and one-half months. But just a few hours later, the district court denied the

Government of Guam’s motion for reconsideration without a hearing. ER 5-32.

The district court’s lengthy order affirmed its earlier finding that no conflict of interest existed. ER 21. In doing so, it simply disregarded the Attorney

General’s explicit admissions that it represented the Receiver. ER 17-18. The order also did not address any of the Attorney General’s more recent admissions or pronouncements that it would not take instructions from the Office of the

Governor.

The district court’s order did make it clear that any attorney other than the

Attorney General appearing on behalf of the Government of Guam risked sanctions. The district court expressed its “concern” about the “propriety of the filing of the Entry of Appearance by [Sandra Cruz] Miller, who was aware that the

Attorney General was then representing [the Government of Guam] and had been

for many years.” ER 29. The Court “assume[d], without deciding, that such filing

may be a veiled attempt to avert compliance with the requirements of Local Rule

GR 19.1(b), particularly because such filing was made only upon the court’s denial

of the Substitution of Counsel.” Id. Finally, the district court found “that a full

substitution of the [Cabot Firm] for the Attorney General in this case will likely

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result in substantial delay to the final closure of the Ordot Dump and significant expenses to the Receiver and ultimately the Government of Guam.” ER 32.

Shortly thereafter, the district court eliminated the limited role left for the

Cabot Firm when it denied the Layon Landowners’ motion to intervene on August

21, 2013, again without a hearing. ER 265-284. Then on September 18, 2013, the district court confirmed its prior denial of the Government of Guam’s request to substitute counsel and motion to reconsider and declined to clarify the Attorney

General’s role, again without a hearing. ER 1-4. The district court concluded that

“no further clarification is necessary since the court has repeatedly held that the

Receiver was not the client of the Attorney General in the Layon Condemnation

Case,” and “[a]s for whether the Receiver was the client of the Attorney General in this action, the court’s Order re Motion for Reconsideration also answered this question in the negative….” ER 2.

V. The Government of Guam brings multiple motions to stay and appeals the district court’s denials of substitution of counsel The district court’s orders were impossible to reconcile with the Attorney

General’s conduct or the statements made in its August 13, 2013 motion for clarification. Desperate to regain the Government of Guam’s ability to participate in the ongoing proceedings, the Office of the Governor brought a motion to stay the Receiver’s procurement of new contracts on September 13, 2013. See ER 240-

261. The motion requested a stay until the district court (1) allowed the

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Government of Guam to substitute its counsel, (2) disqualified the Attorney

General, and (3) held a hearing to determine what effect the Attorney General’s conflict of interest had on prior proceedings. ER 260. The supporting declarations revealed that the Attorney General had not communicated with the Office of the

Governor regarding the case since the amended substitution was denied on May

16. ER 233; ER 229. The Office of the Governor also moved to shorten time because the Receiver had announced it would be awarding contracts for the Ordot

Dump closure project “before the end of the month.”

Despite the Office of the Governor’s motion to shorten time, the district court set a briefing schedule on the motion to stay that would not be completed until after the Receiver expected to award the first contract for the Ordot Dump closure project. See ER 220. This briefing schedule would effectively moot the

pending motion to stay. Therefore, on September 26, 2013, the Government of

Guam appealed the district court’s orders denying substitution of counsel and

reconsideration long before the deadline, ER 217-219, and on the same day, made

a new emergency motion to stay the case pending appeal, ER 204-216.

On September 27, 2013, the Receiver reported that its first contract would be

awarded “not earlier than October 14, 2013.” ER 202-203. The same day, the

district court scheduled an October 5, 2013 hearing on the Government of Guam’s

emergency motion to stay. This was first hearing the district court had ever

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scheduled in connection with these issues. But on October 11, 2013, the district court denied the Government of Guam’s emergency motion to stay pending appeal.

On October 18, 2013, the Government of Guam appealed the district court’s order on the Attorney General’s motion for clarification. ER 199-201. On the same day, the Government of Guam also requested an order on its still pending September

13, 2013 motion to stay. ER 192-198.

On October 29, 2013, the district court denied the Government of Guam’s

September 13, 2013 motion to stay. ER 171-191. The district court ordered the

Receiver to “proceed with the procurement process and awarding of contracts for the Ordot Dump closure construction project and for construction management services associated thereto,” ER 171-191, “unless a stay of these proceedings is ordered by the Ninth Circuit Court of Appeals by October 31, 2013, at 5:00 p.m.

Chamorro Standard Time…,” ER 191. The district court also once again declined to find that the Attorney General had a conflict of interest. ER 180. But despite there being no pending request to substitute counsel, the district court sua sponte ordered the Government of Guam to substitute the Cabot Firm for the Attorney

General as its attorneys in the case based on its finding that there had been “a breakdown in the attorney-client relationship.” Id.

On October 30, 2013, the Government of Guam appealed the district court’s denial of its motion to stay and filed with this Court an emergency motion under

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Rule 8 of the Federal Rules of Appellate Procedure for a stay of the proceedings in the district court and for an interim stay while the motion was under consideration.

On October 31, 2013, this Court denied the motion.

VI. The Receiver awards new contracts for the closure of the Ordot Dump which exceed its budget for those contracts by $26 million The next day, the Receiver awarded the construction contract for the Ordot

Dump closure. ER 56. On November 20, 2013, the Receiver reported to the district court that it will now cost approximately $66 million to close the Ordot Dump

(including design, construction, construction management, and additional land acquisition) – or approximately $26 million more than the Receiver’s previous budget for the project. ER 67.

The Receiver also projected an overall funding shortfall of $19.9 million for the Consent Decree capital projects. Id. But this amount does not include the amount necessary to pay the judgment awarded to the Layon Landowners. Nor does not include the estimated $14 million cost to the Government of Guam to monitor the Ordot Dump post-closure. ER 691-692. Therefore, in addition to the approximately $200 million in public debt the Government of Guam has already incurred, the district court imposed approximately $62 million in new unfunded liabilities while the Government of Guam remained effectively unrepresented in the proceedings.

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On October 30, 2013, this Court consolidated the appeals addressed in this

brief.2

STANDARD OF REVIEW

Mixed questions of law and fact are reviewed de novo. Lim v. City of Long

Beach, 217 F.3d 1050, 1054 (9th Cir. 2000). A mixed question of law and fact

exists when there is no dispute as to the facts or the rule of law and the only

question is whether the facts satisfy the legal rule. Id. The district court’s

conclusions denying (a) the existence of an attorney-client relationship between the

Attorney General and the Receiver and (b) the existence of the Attorney General’s

conflict of interest present mixed questions of law and fact since they involve a

determination of whether factual findings satisfy undisputed rules of law. In re

Grand Jury Subpoenas, 803 F.2d 493, 496 (9th Cir. 1986) opinion corrected, 817

F.2d 64 (9th Cir. 1987); United States v. Moore, 159 F.3d 1154, 1157 (9th Cir.

1998); see also United States v. McConney, 728 F.2d 1195, 1200, 1205 (9th Cir.

1984) (en banc) cert. denied, 469 U.S. 82, overruled on other grounds, Estate of

Merchant v. C.I.R., 947 F.2d 1390 (9th Cir. 1991).

2 On December 11, 2013, after the Receiver’s award of the Ordot Dump closure contracts rendered it moot, the Government of Guam moved to voluntarily dismiss its appeal of the district court’s order denying its motion to stay the procurement and its appeal of a related order. This Court granted the voluntary dismissal on December 13, 2013.

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This Court reviews denials of requests to substitute counsel for abuse of discretion. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). This Court also reviews denials of motions for reconsideration for abuse of discretion. Kona

Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000).

SUMMARY OF ARGUMENT

Courts have a duty to preserve the integrity of the adversarial process. See

Strickland v. Washington, 466 U.S. 668, 696 (1984). Because the adversarial process is so important, courts have no discretion to deny a substitution of counsel

when it is demonstrated that there is a breakdown in the attorney-client relationship

or that “an actual conflict of interest exist.” Jackson, 921 F.2d at 888. The record

before the district court in this case contained undisputed evidence showing that (a)

there had been a complete breakdown in the attorney-client relationship between

the Government of Guam and the Attorney General and (b) the Attorney General

was disabled by a conflict of interest. The district court therefore abused its

discretion by denying the Government of Guam’s amended substitution of counsel

and motion for reconsideration of the same.

The district court’s duty to preserve the integrity of the adversarial process

also requires it to meaningfully inquire into possible conflicts of interest or

breakdowns in the attorney-client relationship when they are raised. See Lewis v.

Lane, 816 F.2d 1165, 1170 (7th Cir. 1987). When it first filed its amended

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substitution of counsel, the Government of Guam presented evidence to the district court showing that the Attorney General had a conflict of interest and was no longer providing meaningful representation to the Government of Guam. Even if the district court was unconvinced by this evidence, it should have inquired further.

By instead summarily denying the Government of Guam’s amended substitution of counsel without briefing or a hearing, the district court abused its discretion.

As a result of the district court’s failure to preserve the integrity of the adversarial process, the Government of Guam was prevented from being meaningfully heard. The Government of Guam can only participate in legal proceedings through counsel. Without counsel, the Government of Guam was unable to meaningfully participate in the subsequent proceedings that imposed approximately $62 million in unfunded liabilities on the Government of Guam.

It is well settled that an order or judgment against a party that is denied the right to participate in the hearing of a motion is void. Winhoven v. United States,

201 F.2d 174, 175 (9th Cir. 1952); In re Center Wholesale, Inc., 759 F.2d 1440,

1448 (9th Cir. 1985). Because the district court improperly prevented the

Government of Guam from substituting its counsel, it left the Government of

Guam effectively unable to participate in the proceedings. The district court’s orders that were issued while the Government was unable to participate are void.

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ARGUMENT

I. The district court abused its discretion when it prevented the Government of Guam from replacing its conflicted and disloyal attorneys It is a “fundamental principle that fair resolution of disputes within our

adversary system requires vigorous representation of parties by independent

counsel unencumbered by conflicts of interest.” Concat LP v. Unilever, PLC, 350

F. Supp. 2d 796, 814 (N.D. Cal. 2004) (quoting Allen v. Academic Games Leagues of Am., Inc., 831 F. Supp. 785, 789 (C.D. Cal. 1993)) (additional citations omitted).

For this reason, courts have no discretion to deny a substitution of counsel when it is demonstrated that there is a breakdown in the attorney-client relationship or that

“an actual conflict of interest existed.” Jackson, 921 F.2d at 888 (citing Wood v.

Georgia, 450 U.S. 261, 273–74 (1981)); Stewart v. Gen. Motors Corp., 756 F.2d

1285, 1293 (7th Cir. 1985) (applying the same rule in the civil context) (citing

United States v. Morris, 714 F.2d 669 (7th Cir. 1983)).

A. As the Government of Guam’s attorney, the Attorney General owed its duties to the Governor of Guam and his authorized representatives When the Attorney General represents the Government of Guam in litigation, both federal and Guam law require the Attorney General to act at the

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direction of the Governor of Guam or his authorized representative.3 Under the

Organic Act of Guam [48 U.S.C. § 1422], the United States Congress declared the

Governor of Guam to be the executive officer of the territory. Because “the

Governor is the executive officer of the territory and has authority over the

Attorney General,” the Governor has the authority to establish the Government of

Guam’s policies and litigation strategies in actions involving the Government of

Guam’s defense in this case. Santos v. Camacho, Civ. 04-00006, 2006 WL

581251 at *6 (D. Guam Mar. 10, 2006) (citing 48 U.S.C. § 1422). Indeed, the

district court previously recognized this fact: on May 3, 2013, the district court

rejected the first substitution of counsel filed by the Government of Guam on the

sole basis that it was not signed by the Governor of Guam or his authorized

representative as the official party representative of the Government of Guam. ER

783-784.

Therefore, the Attorney General was obligated to advocate the policy

positions of the Governor of Guam in this case. Merrill v. The Guam Election

Commission, Civil Case No. 04-00045 (“Merrill”), slip op. at 12 (D. Guam March

16, 2005) (Findings and Recommendation by Magistrate Judge, ECF No. 106),

3 The current Governor of Guam, Eddie Baza Calvo, has determined he has a conflict of interest and has delegated his authority in this litigation to the Lieutenant Governor of Guam. ER 710.

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adopted May 10, 2005 (Order, ECF No. 115-1). “[I]t is the duty of the Attorney

General to zealously advocate the public policy positions of his client in pleadings,

in negotiations, and in the courtroom and to avoid even the appearance of

impropriety by appearing to be in conflict with the desire of his client.” Merrill at

13 (quoting Manchin v. Browning, 170 W. Va. 779, 790 (1982)).

B. Notwithstanding its duties to the Government of Guam, the Attorney General began concurrently representing the Receiver In order to rule on the Government of Guam’s amended substitution of

counsel, the district court was required to determine whether the Attorney General

had an attorney-client relationship with the Receiver and whether this relationship

constituted a conflict of interest under Guam Rule of Professional Conduct 1.7.

Applying this Court’s de novo standard of review to these mixed questions of fact

and law, the district court’s determinations were clearly wrong.

1. The May 10, 2013 amended substitution of counsel was supported by unrebutted evidence showing that the Attorney General represented the Receiver The Government of Guam supported its May 10, 2013 amended substitution of counsel with a declaration from the Lieutenant Governor of Guam. This declaration stated that the Attorney General represented the Receiver in the Layon condemnation case. ER 711.

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In the face of this unrebutted declaration, the district court nonetheless found

that the Attorney General did not represent the Receiver and did not have a conflict of interest. ER 33-37. In its own order denying the amended substitution, the district court stated:

The Amended Substitution appears to repeat the mistaken notion that the Receiver is a former client of the Attorney General because the Receiver was represented by the Attorney General in the Layon Condemnation case. This is simply incorrect. … The Attorney General acknowledges that it represented the Government of Guam in the Layon Condemnation Case, not the Receiver. See Acknowledgment, ECF No. 1057, at ¶3. While the Receiver may have participated in and assisted with certain aspects of the litigation, the Government of Guam was the named party to the suit, not the Receiver. Thus it is improper to assert or imply that such participation somehow converted the Receiver into the client in that case (emphasis in original).

ER 34-35.

These findings were not reasonable based on the evidence, even when limited to the evidence available at the time. Simply put, there was no evidence to support the district court’s findings. The Attorney General’s Acknowledgment did not deny that the Attorney General also represented the Receiver. Instead, the

Acknowledgment stated the following:

l. There are two parties to the instant litigation; (1) the United States of America; and (2) the Government of Guam. Since the inception of this case, over 9 years ago, the AGO has represented the Government of Guam2;

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2. In Government of Guam v. 1.348,474 Square Meters, More or Less, Superior Court of Guam Civil Case No. CV0084-08, the AGO represented the Government of Guam3;

ER 705-706. But the Acknowledgment also included the following relevant footnotes:

2 On March 17, 2008, pursuant to its equity jurisdiction and Rule 70 of the Federal Rules of Civil Procedure this court appointed a receiver to manage, supervise and oversee the Solid Waste Management Division ("SWM") of the Department of Public Works (“DPW”) of the Government of Guam. See ECF No. 239 at 1. Pursuant to P.L. 31- 020:3, the SWM of the DPW continued in existence as the Guam Solid Waste Authority. l0 G.C.A. § 51A103.

3 See fn. 2.

ER 706. Thus, while the Acknowledgment did state that the Attorney General represented the Government of Guam in the condemnation case and the district court action, the footnotes qualify those statements by referring to the Receiver’s powers over the line agency of the Government of Guam (and subsequently,

GSWA), that was responsible for carrying out the condemnation case. Id.; ER 647-

648.

The Acknowledgment failed to address – let alone contradict – the

Lieutenant Governor’s declaration, where the issue was not whether the Attorney

General represented the Government of Guam but whether the Attorney General had represented both the Government of Guam and the Receiver concurrently. ER

714-719. Indeed, the Acknowledgment’s vague reference to the Receiver and the

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role it played during the Layon condemnation case created more questions than answers. The Attorney General showed with its own subsequent filings one month later that the Acknowledgment was merely artfully misleading and did not preclude the Attorney General from expressly admitting to representing the

Receiver when forced to do so. See discussion infra Part I.A.2.

Because the Acknowledgment did nothing to rebut the Lieutenant

Governor’s declaration, the district court had no concrete basis in the record for

rejecting the facts set forth in the Lieutenant Governor’s declaration. At a

minimum, if the district court believed that the Acknowledgment potentially

created a dispute over the facts set forth in the Lieutenant Governor’s May 10,

2013 declaration, it should have allowed briefing on the issue. But the district court

denied the amended substitution of counsel before the Government of Guam could

even respond to the Acknowledgment. The district court’s order issued six days

later on May 16, 2013, without either a hearing or any briefing,4 based solely on the Acknowledgment. ER 33-37. The district court’s findings were clearly wrong,

4 While substitutions of counsel are not ordinarily treated as adversarial motions, under the district court’s local rules, oppositions to motions are due fourteen days after the motion is filed when no oral argument is scheduled. District Court of Guam LR 7.1(c)(2)(A). Reply briefs are due seven days after service of an opposition. District Court of Guam LR 7.1(c)(2)(B). Even if the Attorney General’s Acknowledgment was deemed an “opposition,” the Office of the Governor’s reply would have been due the day after the district court denied its amended request to substitute counsel.

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even if examined solely in light of the evidence available to the district court at the time.

2. The Attorney General then expressly admitted it represented the Receiver Any remaining doubts about the Attorney General’s representation of the

Receiver that existed when the district court first denied the Government of

Guam’s amended substitution of counsel were soon precluded by the Attorney

General’s own words. On May 28, 2013, the Cabot Firm filed the motion for reconsideration and included a declaration from the Chief Legal Counsel in the

Office of the Governor. The declaration attached two letters from J. Patrick Mason on behalf of the Attorney General, both of which identically stated:

Through the entry of judgment in the “Superior Court Litigation,” the Receiver, in its official capacity, was our client and therefore all communications between our office and the Receiver are protected by the attorney client privileged and/or work product doctrine [emphasis added].

ER 647-649.

The Attorney General repeatedly confirmed this admission in subsequent

filings. On June 14, 2013, the Attorney General filed a response to the motion for

reconsideration in district court. ER 318-330. The Attorney General again admitted

that it represented the Receiver in its “official capacity.” ER 323-328. Then, on

August 13, 2013, the Attorney General further clarified its representation of the

Receiver in a filing with the district court. This time, the Attorney General

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explained that it owed duties only to the Receiver, not to Office of the Governor.

ER 291-295. The Attorney General also admitted that it had not represented the

Government of Guam in the Consent Decree enforcement action since April 18,

2011. ER 294. Finally, the Attorney General asserted that the attorney-client privilege protected its communications with the Receiver from disclosure to the

Office of the Governor. Id.

C. The district court abused its discretion by failing to allow the Government of Guam to substitute new counsel for the Attorney General after the Attorney General had clearly abandoned the Government of Guam in favor of the Receiver The preservation of a proper attorney-client relationship requires “a rule that prevents attorneys from accepting representation adverse to a former client if the later case bears a substantial connection to the earlier one.... Substantiality is

present if the factual contexts of the two representations are similar or related.”

Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). Here the Attorney General

chose to switch sides and represent the Receiver in this case against the

Government of Guam. The Attorney General’s decision resulted in a clear conflict

of interest and necessarily resulted in the complete breakdown of the Attorney

General’s relationship with the Government of Guam. It also completely disabled

the Attorney General from providing meaningful representation of the Government

of Guam in adversarial proceedings involving the Receiver going forward.

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The law precluded the Attorney General from remaining in the case. The

district court had no discretion to deny the Government of Guam’s amended

substitution of counsel.The district court’s persistent denial of the Government of

Guam’s request to be represented by the unconflicted Cabot Firm in light of this

reality was an abuse of discretion.

1. The Attorney General’s representation of the Receiver created a conflict of interest The district court record clearly reflects the Attorney General’s conflict of interest under Guam law. Guam has adopted the ABA Model Rules of Professional

Conduct to govern attorneys practicing in Guam and provide rules against conflicting representations. Santos, 2006 WL at *6. Under Rule 1.7, an attorney has a conflict of interest where:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

This rule applies equally to government lawyers; under Guam law, the Attorney

General is entitled to act as legal counsel to the Government of Guam, except when

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the Attorney General has a conflict of interest. Merrill at 14.5 When the Attorney

General has a conflict of interest, it must appoint new counsel. See id. at 13;

Jackson, 921 F.2d at 888; Stewart, 756 F.2d at 1293.

Here, the Attorney General’s representation violated both subsections of

Rule 1.7. First, under Rule 1.7(b), it was already clear from the evidence

supporting the Government of Guam’s amended substitution of counsel that there

was a “significant risk” that the Attorney General’s representation of the

Government of Guam was “materially limited” by its responsibilities to what the

Government of Guam at the time understood to be its former client, the Receiver.

The Receiver’s oversight of the Layon condemnation case was directly at issue in the dispute that had arisen between the Receiver and the Government of Guam over the Receiver’s refusal to pay the condemnation judgment out of the Consent

Decree Funds. Second, while it was undisclosed until August 13, 2013, the

Attorney General clearly violated Rule 1.7(a): the Attorney General was actually

5 Rules 1.7 and 1.9 of the Guam Rules of Professional Conduct expressly apply to the Attorney General under Rule 1.11(d)(1). Under Rule 1.10(a), the conflicts of any attorney working under the auspices of the Attorney General are imputed to every attorney working in the office whether or not any individual attorney has previously appeared in either case. See also Guam R. Prof. Conduct 1.0, comment 3.

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still representing the Receiver while it simultaneously remained counsel of record for the Government of Guam in the district court.

The Attorney General’s decision to represent the Receiver against the

Government of Guam violated Rule 1.7 and should have disqualified it from further participation in the case. Santos, 2006 WL at *7. Instead of withdrawing as required under Rule 1.7, however, the Attorney General actively tried to remain in

the case in order to represent the Receiver. The Attorney General denied it had a

conflict even after it had admitted to the district court that it had been taking

direction only from the Receiver at the same time it was appearing as the

Government of Guam’s counsel of record. ER 292-295. The Attorney General also

asserted the attorney-client privilege on behalf of the Receiver and the GSWA

against the Government of Guam. ER 289-290. Under these circumstances, the

district court’s only choice was to grant the Government of Guam’s substitution.

2. The Attorney General’s conduct revealed that its relationship with the Office of the Governor was completely broken The district court record also clearly reflects the Attorney General’s

complete disregard for the Office of the Governor. The Attorney General rejected

its instructions from the Office of the Governor and filed its own unauthorized

response to the Layon Landowners’ motion to intervene on May 9, 2013. On May

10, 2013, the Attorney General refused the Office of the Governor’s instruction to

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sign the Government of Guam’s amended substitution of counsel. Instead, the

Attorney General separately filed its “Acknowledgment,” which clearly attempted to sidestep the issue of whether it had previously represented the Receiver. ER

705-706. The Office of the Governor was forced to send its in-house lawyer to appear in the district court and publicy file a declaration from the Lieutenant

Governor expressing the breakdown between the Office of the Governor and its own lawyers. See ER 710-711.

Two weeks later, on June 14, 2013, the Attorney General publicly disputed

the basis for the Government of Guam’s motion for reconsideration while

admitting in the same papers that it had been representing the Receiver. ER 318-

330. Finally, on August 13, 2013, while the motion for reconsideration remained

pending, the Attorney General declared publicly that it did not represent the

Government of Guam at all and had not since April 2011. ER 290-295. There could not be a clearer example of a breakdown in the attorney-client relationship warranting substitution.

3. Despite the Attorney General’s public abandonment of the Government of Guam, the district court refused to allow the Government of Guam to substitute new, loyal counsel

The district court abdicated its fundamental responsibility to preserve the integrity of the adversarial process when it refused to acknowledge the Attorney

General’s misconduct or allow the Government of Guam to substitute new counsel.

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Notwithstanding the ample evidence already in the record, the district court denied the Government of Guam’s amended substitution of counsel on May 16, 2013 without any briefing or hearing. ER 33-37. On August 13, 2013, the district court denied the Government of Guam’s motion for reconsideration, again without a hearing. ER 5-32. The district court then confirmed these decisions five days later on September 18, 2013. ER 1-4. Throughout this period and for months afterward,

the district court continued to recognize the Attorney General as the Government

of Guam’s only counsel of record (except with respect to the Layon Landowners’

motion to intervene, which was denied on August 21, 2013) over the objections of

the Office of the Governor.

These decisions left the Government of Guam on the sidelines while the

Receiver proceeded with its procurement of new contracts. Instead of ensuring that

the Government of Guam had a voice in the proceedings, the district court urged

the Receiver to move swiftly to award these new contracts for which the

Government of Guam would be liable while the Government of Guam remained

effectively unrepresented. ER 296-297. By failing to preserve the adversarial

process and insure that the Government of Guam was meaningfully heard, the

district court abused its discretion.

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reviewed for abuse of discretion, the district court’s subsidiary conclusions that the

Attorney General did not represent the Receiver and did not have a conflict of

interest are not. Instead, under Ninth Circuit law, the district court’s conclusion

that the Attorney General did not have an attorney-client relationship with the

Receiver is reviewed de novo. In re Grand Jury Subpoenas, 803 F.2d at 496. And

the same standard applies to the district court’s conclusion that the Attorney

General did not have conflict of interest because it is a mixed question of law and

fact. Moore, 159 F.3d at 1157; see also McConney, 728 F.2d at 1200, 1205.

Neither conclusion can withstand de novo review in this case. The only

possible conclusion given the totality of the record in this case is that the Attorney

General believed that Receiver was its client and acted accordingly. This

relationship created a conflict of interest because the Receiver and the Government of Guam are clearly adverse with respect to any challenge to the Receiver’s use of

Consent Decree Funding. Once the Attorney General decided that its loyalties lay with the Receiver, it also necessarily resulted in a breakdown in its relationship with the Government of Guam.

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The district court had no discretion to deny the Government of Guam’s amended substitution of counsel if it determined that the Attorney General had a conflict of interest and that there had been a complete breakdown in the attorney- client relationship. Since those determinations are clearly warranted by the record, the district court’s orders should also be reversed.

D. The district court’s refusal to reconsider its prior rulings was also an abuse of discretion The district court also misapplied the standard for motions for reconsideration. “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”

Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

Cir. 1993).

The district court clearly abused its discretion in this case by refusing to consider both the evidence presented by the Government of Guam in support of its motion and also the subsequent independent admissions of the Attorney General.

Both demonstrated that the district court “committed clear error” when it found that the Attorney General had never represented the Receiver. While “[a] Rule

59(e) motion [to reconsider] may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in

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the litigation,” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003), the

Government of Guam was denied a reasonable opportunity to present its evidence because the district court summarily rejected the amended substitution of counsel without any briefing or a hearing. Furthermore, the Attorney General’s subsequent admissions on June 14 and August 13, 2013 were “newly discovered evidence” unavailable to the Government of Guam when it submitted its amended substitution of counsel. For these reasons, the district court’s denial of the motion for reconsideration should be reversed.

II. The district court erred by failing to conduct a meaningful inquiry into the Attorney General’s representation of the Receiver and potential conflict of interest The district court also should have conducted a meaningful inquiry when it first learned of a possible breakdown in the attorney-client relationship and that an actual conflict of interest existed. It has long been established in the Sixth

Amendment context that, when “the possibility of a conflict of interest” is sufficiently apparent, the court has “a duty to inquire further.” Wood, 450 U.S. at

272 (emphasis in original). The court’s concern for preserving the integrity of the

adversarial process described in Strickland, should lead to the same result in the

civil context.

The Seventh Circuit has already reached this result. See Lewis v. Lane, 816

F.2d 1165, 1170 (7th Cir. 1987). In Lewis, a magistrate denied the plaintiffs’

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request to substitute counsel and granted the defendants’ motion for summary judgment in a Section 1983 action alleging that cruel and unusual punishment on death row. The plaintiffs had complained that their attorney had failed to amend their complaint or keep in touch with them. Id. at 1167. In reversing the magistrate’s decision for an abuse of discretion,6 the Seventh Circuit Court of

Appeals stated:

The magistrate either should have granted the motion to substitute, or should have held a hearing or taken other appropriate steps to determine whether the problems raised in the motion to substitute had been cleared up, before ruling on the summary judgment motion.

Id. at 1170.

The wisdom of the Seventh Circuit’s requirement that a trial court inquire

into the basis asserted for a request to substitute counsel even in civil cases was

amply demonstrated in this case. As subsequent proceedings made clear, had the

district court conducted a meaningful inquiry when the Government of Guam

originally requested to substitute counsel, it would have found that the Government

of Guam’s evidence supporting substitution and motion to reconsider was accurate:

6 While Lewis involved a court-appointed lawyer under 28 U.S.C. § 1915(d) the appellants abandoned their argument that they had “either a statutory or constitutional right to minimally effective assistance of counsel.” Id. at 1171 n.6. Therefore, the court of appeals applied the same abuse of discretion standard for denials of motions to substitute counsel applicable in ordinary civil cases. Id. n.7.

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the Attorney General’s conduct had resulted in both a complete breakdown in the attorney-client relationship and an actual conflict of interest. The Attorney General switched sides in this case, representing the Receiver and its interests against the

Government of Guam despite remaining the Government of Guam’s counsel of record.

By failing to inquire further, the district court presided over tainted proceedings that were no longer truly adversarial. Courts have a fundamental obligation to avoid this result under the principles of Strickland. This Court should hold that the district court’s duty to preserve the integrity of the adversarial process imposes the corresponding duty to conduct a meaningful inquiry to the extent necessary to determine whether substitution of counsel is necessary to avoid converting adversarial proceedings into a one-sided affair. This Court should also find that the district court abused its discretion by failing to conduct an inquiry into the Attorney General’s conduct after it first learned that the Attorney General might have a disabling conflict of interest.

III. Orders issued by the district court while it prevented the Government of Guam from being meaningfully heard are void The Government of Guam’s appeal seeks to remedy the district court’s violation of the Government of Guam’s right to participate in the adversarial process. “For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard….”

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Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quotation omitted). “It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.” Id. (quotation omitted). By preventing the Government of Guam from substituting the Cabot Firm for the

Attorney General, the district court denied the Government of Guam’s right to be meaningful heard in important proceedings that imposed tens of millions of dollars in additional liabilities on the Government of Guam. Under well-settled law, the results of these proceedings are void.

A. The Government of Guam was entitled to be heard with respect to the Receiver’s plans to procure new contracts to close the Ordot Dump that exceeded its budget The proceedings in the district court that took place after the district court denied the Government of Guam’s amended substitution of counsel on May 16,

2013 clearly affected the Government of Guam’s rights. Under the terms of the

Consent Decree, the Government of Guam remained subject to the district court’s jurisdiction to “handle any disputes that arise under [the] Consent Decree.” ER

1118-1142. Although the GSWA is in receivership, funding for its capital projects remains a general obligation of the Government of Guam. Whenever the district court exercises its continuing jurisdiction to enforce the Consent Decree against the

Government of Guam by requiring it to fund Consent Decree projects, it affects the

rights of the Government of Guam.

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The appointment of the Receiver in this case did not somehow eliminate the need for adversarial proceedings regarding disputed issues. The Receiver was not given a blank check by the district court to carry out the Consent Decree. As long as the cost of the Consent Decree continues to be borne by the Government of

Guam, it has the right to be heard whenever there is a possibility that the

Receiver’s actions will impose additional liabilities on the Government of Guam.

Therefore, when the Receiver provided estimates for the closure of the Ordot

Dump and reported that they exceeded the amounts provided for in its previous budgets, the Government of Guam’s rights were affected. Due process required the district court to provide the Government of Guam with a meaningful opportunity to be heard regarding the effect on its rights.

through the Organic Act of Guam to represent the people of Guam. See 48 U.S.C.

§ 1421 et seq. Because the Government of Guam is not a natural person, it can

only be heard through an attorney. See Rowland v. California Men's Colony, Unit

II Men's Advisory Council, 506 U.S. 194, 202, (1993) (“[A] corporation may

appear in the federal courts only through licensed counsel. … As the courts have

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recognized, the rationale for that rule applies equally to all artificial entities.

[emphasis added]”).

Because it can only heard through an attorney, the Government of Guam must be permitted to be represented by loyal counsel that is not disabled by a conflict of interest. Without an attorney advocating its positions, the Government of Guam is not meaningfully heard, The district court, however, continued to enforce the Consent Decree against the Government of Guam even after it learned that the Attorney General was taking instructions from the Receiver instead of the

Governor of Guam and had been for some time. In effect, the district court replaced the elected Governor of Guam with the Receiver as the Government of

Guam’s party representative without a hearing and in violation of the Organic Act of Guam. This decision eliminated the adversarial nature of the proceedings and prevented the Government of Guam from challenging the Receiver’s costly new proposals.

C. Proceedings conducted after the district court’s denial of the Government of Guam’s substitution of counsel are void It is well settled that an order or judgment against a party that is denied the right to participate in the hearing of a motion is void. See Winhoven v. United

States, 201 F.2d 174, 175 (9th Cir. 1952); In re Ctr. Wholesale, Inc., 759 F.2d

1440, 1448 (9th Cir. 1985). Because the district court improperly denied the

Government of Guam’s substitution of counsel on May 16, 2013 – leaving the

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Government of Guam effectively unable to participate in the proceedings – the district court’s subsequent orders are void.

CONCLUSION

For the foregoing reasons, the Government of Guam respectfully requests that the Court reverse the district court’s decisions finding that, as of May 16,

2013, the attorney-client relationship between the Government of Guam and the

Attorney General had not completely broken down and that the Attorney General did not have a conflict of interest, and remand with instructions to void all subsequent orders from May 16, 2013 through October 29, 2013.

Respectfully submitted,

/s/ Jay D. Trickett

William N. Hebert Jay D. Trickett Counsel of Record CALVO FISHER & JACOB LLP One Lombard Street, Second Floor San Francisco, California 94111 Telephone: (415) 374-8370 Facsmile: (415) 374-8373 Attorney for the Defendant-Appellant

Dated: February 7, 2014

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STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Appellant certifies that there are no

related appeals pending in the Ninth Circuit.

/s/ Jay D. Trickett

Dated: February 7, 2014

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I, the

under-signed counsel, certify that this Appellant’s Opening Brief is proportionately

spaced, has a typeface of 14 points or more, and contains 10,650 words of text (not

counting the cover, Tables of Contents and Authorities, this Certificate of

Compliance, the Statement of Related Cases, the Proof of Service, or the

Addendum) according to the word count feature of Microsoft Word used to

generate this Brief.

/s/ Jay D. Trickett

Dated: February 7, 2014

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ADDENDUM TO APPELLANT’S OPENING BRIEF

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TABLE OF CONTENTS

Page

Excerpts from the Guam Rules of Professional Conduct ...... 1

Merrill v. The Guam Election Commission, Civil Case No. 04-00045, slip op. (D.

Guam March 16, 2005) ...... 7

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Excerpts from the Guam Rules of Professional Conduct

RULE 1.0, comment 3.

With respect to the law department of an organization, including the

government, there is ordinarily no question that the members of the department

constitute a firm within the meaning of the Rules of Professional Conduct. There

can be uncertainty, however, as to the identity of the client. For example, it may

not be clear whether the law department of a corporation represents a subsidiary or

an affiliated corporation, as well as the corporation by which the members of the

department are directly employed. A similar question can arise concerning an

unincorporated association and its local affiliates.

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a

former client or a third person or by a personal interest of the lawyer.

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(b) Notwithstanding the existence of a concurrent conflict of interest under

paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

RULE 1.9: DUTIES TO FORMER CLIENTS

(a) A lawyer who, has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former

client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

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(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client,

or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules\

would permit or require with respect to a client.

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

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(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

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(1) the disqualified lawyer is timely screened from any participation in the

matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to

enable it to ascertain compliance with the provisions of this rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the

information could be used to the material disadvantage of that person. As used in

this Rule, the term “confidential government information” means information that

has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a

legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as

a public officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

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(i) participate in a matter in which the lawyer participated

personally and substantially while in private practice or nongovernmental

employment, unless the appropriate government agency gives its informed

consent, confirmed in writing; or

(ii) negotiate for private employment with any person who is

involved as a party or as lawyer for a party in a matter in which the lawyer is

participating personally and substantially, except that a lawyer serving as a

law clerk to a judge, other adjudicative officer or arbitrator may negotiate for

private employment as permitted by Rule 1.12(b) and subject to the

conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term “matter” includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 65 of 94 FIL£D DISTRICT COURT OF GU 2 MAR 16 2005 3 MARY L.M. MORAN 4 CLERK OF COURT 5 DISTRICT COURT OF GUAM 6 CJo"--:J TERRITORY OF GUAM 7

8 LOURDES P. AGUON-SCHULTE, ) CIVIL CASE NO. 04-00045 ) 9 Plaintiff, ) (as removed from the Superior Court of Guam ) Civil Case No. CV-ll03-04) 10 vs. ) ) II THE GUAM ELECTION COMMISSION, ) GERALD A. TAITANO, in his official ) ]2 capacity as the Executive Director of the ) Guam Election Commission, IMINA' ) 13 BENTE SIETE NA LIHESLATURAN ) GUAHAN (The 27th Guam Legislature) and) 14 FELIX P. CAMACHO, in his official ) capacity as the Governor of Guam, ) ]5 ) Defendants. ) 16 ------) ) 17 JAY MERRILL, on his own behalf and on ) CIVIL CASE NO. 04-00046 behalf of all other similarly situated voters ) 18 desirous of casting a vote in favor of ) (as removed from the Superior Court of Guam Proposal A at a fair and legal election, ) Civil Case No. CV-ll 1 1-04) }9 ) Plaintiffs, ) 20 ) vs. ) FINDINGS AND RECOMMENDATION 21 ) BY MAGISTRATE JUDGE THE GUAM ELECTION COMMISSION, ) 22 GERALD A. T AITANO, in his official ) capacity as the Executive Director of the ) 23 Guam Election Commission, IMINA' ) BENTE SIETE NA LIHESLATURAN ) 24 GUAHAN (The 27th Guam Legislature) and ) FELIX P. CAMACHO, in his official ) 25 capacity as the Governor of Guam, ) ) 26 Defendants. )

27 ------)

28 On February] 8, 2005, these consolidated cases came before the Court for hearing on the

Case 1:04-cv-00046 DocumentORIGINM 106 Filed 03/16/05 Page 1 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 66 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission. ef al., Civil Case No. 04-00045 Jay Merrill, etc" et al. v. Guam Election Commission, et al., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand 1 Attorney General's motions to strike the appearances by and pleadings of private counsel and the

2 defendants' motions to remand these actions to the Superior Court of Guam. At the conclusion

3 of the hearing, the Court took the motions under advisement. The Court now issues its fmdings 4 and recommendation for the parties' and the district judge's review. 5 BACKGROUND 6 On or about October 18,2004, Plaintiff Lourdes P. Aguon-Schulte filed a Complaint

7 (CY 1103-04) in the Superior Court of Guam against the Guam Election Commission, Gerald A. 8 Taitano, in his official and individual capacity, I Mina Bente Siete Na Liheslaturan Guahan (the 9 27'h Guam Legislature), and Felix P. Camacho, in his official capacity as the Governor of Guam.

10 The plaintiff sought declaratory and injunctive relief, and an order from the Court requiring the

II Governor to hold a special election on Proposal A.

12 On or about October 25,2004, Plaintiff Jay Merrill, on his behalf and all others similarly 13 situated, filed a Complaint (CY 1111-04) in the Superior Court of Guam against the Guam

14 Election Commission, Gerald A. Taitano, in his official and individual capacity, 1 Mina Bente 15 Siete Na Liheslaturan Guahan (the 27th Guam Legislature), and Felix P, Camacho, in his official

16 capacity as the Governor of Guam. The plaintiffs sought declaratory and injunctive relief, and an 17 order from the Court requiring the Governor to hold a special election on Proposal A. 18 On October 26,2004, the Attorney General of Guam filed a Notice of Removal of the 19 said cases to the District Court of Guam. In his removal petition, the Attorney General noted that

20 the Plaintiffs complained about alleged violations oftheir right to vote protected by the First and 21 Fourteenth Amendments to the Constitution and their right to vote for initiatives, a right 22 protected by the Organic Act of Guam, a federal statute. Furthermore, the Attorney General

23 alleged that as Chief Legal Officer of the Govemment of Guam, he represented all the named 24 defendants in the litigation. At the same time, the Attorney General lodged with this court a 25 Stipulation and Order for Preliminary Injunction in both cases.] The Stipulation was executed by 26 27 ] Copies of the Stipulation and Order for Preliminary Injunction are attached as Exhibits 28 A and B to this Findings and Recommendation.

Page 2 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 2 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 67 of 94 Lourdes P. Agnon-Schulte v. Guam Election Commission, et at" Civil Case No. 04-D0045 Jay Merrill. elc. et of. y. Guam Election Commission, ef at" Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand I the Plaintiffs' counsel, Thomas L. Roberts, Esq,2 and the Attorney General, through his assistant,

2 Robert M, Weinberg, on behalf of all the defendants.

3 On or about October 28, 2004, I Mina Bente Siete Na Liheslaturan Guahan (the 27th

4 Guam Legislature) filed an entry of appearance through its legislative counsel, Therese M,

5 Terlaje, At the same time, IMina Bente Siete Na Liheslaturan Guahan (the 27th Guam

6 Legislature) lodged an objection to the proposed stipulation and order for preliminary injunction

7 executed between the plaintiffs and the Attorney General, on behalf of the defendant, IMina.

8 Bente Siete Na Liheslaturan Guahan (the 27lh Guam Legislature). On the same day, Felix P.

9 Camacho, the Governor of Guam, filed an appearance through the law finn of Calvo & Clark

10 LLP, as attorneys for the Governor. The Governor simultaneously filed an objection to the

II proposed stipulation and order for preliminary injunction. On or about the same time, Attorney

12 Cesar C. Cabot entered his appearance for the Guam Election Commission and Gerald Taitano,

13 in his individual and official capacities. Attorney Cabot also objected to the stipulation and order

14 for preliminary injunction on behalf of the Guam Election Commission and Director Taitano,

15 On October 29, 2004, the Attorney General filed motions3 to strike the appearances of

16 the various counsel, made on behalf of the said named defendants. Also on the same date, the

17 Court denied the Attorney General and the Plaintiffs' request for a temporary injunction.

18 On or about November 22, 2004, IMina Bente Siete Na Liheslaturan Guahan (the 27th

19 Guam Legislature) moved the Court to remand the cases4 to Superior Court arguing that it did not

20 consent to the removal of the cases to federal court. The Governor, Executive Director Taitano, 21

22 2 The Plaintiffs in both cases are represented by Attorney Roberts, 23 3 Prior to consolidation of these two cases, the Attorney General filed a motion to strike 24 appearances and pleadings by private counsel in each action. See Docket No. 18 in Civil Case No. 04-00045 and Docket No. 13 in Civil Case No. 04-00046. All further references to docket 25 numbers herein shall be to the docket in the lead case, Civil Case No. 04-00046, unless otherwise 26 specified,

ili 27 4 IMina Bente Siete Na Liheslaturan Guahan (the 27 Guam Legislature) filed a motion to remand in each case, See Docket No. 28 in Civil Case No. 04-00045 and Docket No. 30 in 28 Civil Case No. 04-00046,

Page 3 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 3 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 68 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, el al., Civil Case No. 04-00045 Jay Merrill, etc., et al. v. Guam Election Commission, et al., Civil Case No. 04--00046 Order Denying Motions to Strike and Granting Motions to Remand 1 and the Guam Election Commission have joined in the said motion and for the same reason-

2 that they did not consent to the removal of the Superior Court actions to this Court.5

3 The motions to strike and to remand are two of several motions pending before this

4 Court. The Court has decided to hear the motions to strike first since a decision reached therein

5 ultimately decides whether these cases remain with this Court or are remanded back to the

6 Superior Court of Guam.

7 DISCUSSION

8 I. Attorney General Provision in the Organic Act of Guam

9 The pertinent provision of the Organic Act of Guam regarding the Attorney General

10 provides:

11 (d) Attorney General

12 (1) The Attorney General of Guam shall be the Chief Legal Officer ofthe Government of Guam. At such time as the Office of the Attorney General of 13 Guam shall next become vacant, the Attorney General of Guam shall be appointed by the Governor of Guam with the advice and consent of the legislature, and shall 14 serve at the pleasure of the Governor of Guam.

15 (2) Instead of an appointed Attorney General, the legislature may, by law, provide for the election of the Attorney General of Guam by the qualified voters of Guam 16 in general elections after 1998 in which the Governor of Guam is elected. The term of an elected Attorney General shall be 4 years. The Attorney General may 17 be removed by the people of Guam according to the procedures specified in section 1422d of this title or may be removed for cause in accordance with 18 procedures established by the legislature in law. A vacancy in the office of an elected Attorney General shall be filled - 19 (A) by appointment by the Governor of Guam if such vacancy occurs less than 6 20 months before a general election for the Office of Attorney General of Guam; or

21 (B) by a special election held no sooner than 3 months after such vacancy occurs and no later than 6 months before a general election for Attorney General of 22 Guam, and by appointment by the Governor of Guam pending a special election under this subparagraph. 23

24 42 U.S.C. § 1421g(d).

26 5 Subsequent to the filing of its motions to remand, 1 Mina Bente Siete Na Liheslaturan 27 Guahan (the 27th Guam Legislature) was dismissed as a named defendant in each case, The 28 motions to remand, however, are still pending as to the remaining Defendants who have joined in the motions.

Page 4 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 4 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 69 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, e/ al.. Civil Case No. 04-00045 Jay Merrill, etc., et al. v. Guam Election Commission, et al., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand 1 Because the Attorney General is the Chief Legal Officer of the Government of Guam, he

2 argues that he has exclusive right to represent the Government of Guam's agencies and officials

3 in litigation in which the said agencies and officials are involved, In these actions, an entity of

4 the government of Guam, (the Guam Election Commission), and two government officials,

5 (Felix P. Camacho, the Governor of Guam and Gerald A. Taitano, the Executive Director of the

6 Guam Election Commission) are named defendants, Because the named defendants are parts and 7 parcel of the Government of Guam, the Attorney General has opined that he and only he or his 8 staff attorneys within the Office of Attorney General can legally represent them. The Attorney

9 General has stated the issue pending before this Court is constitutional in nature, i.e., his 10 congressional designation as Chief Legal Officer of the Government of Guam prevents any 11 entity, agency, and official of the Government of Guam from being represented by counsel other

12 than the Attorney General. Furthermore, he asserts that the Guam Legislature has no authority to 13 enact legislation which would allow any official, agency, or entity within the Government of

14 Guam to be represented by any attorney other than the Attorney General. The Court must

15 therefore decide whether Governor Felix P. Camacho, the Guam Election Commission, and its 16 Executive Director Gerald A. Taitano may be represented by the attorneys who have made 17 entries of appearances in this litigation on behalf of the said defendants or whether the Court

18 should strike their entries of appearances as motioned by the Attorney General.

19 In 1998, Congress was petitioned by the people of Guam to amend the Organic Act to 20 allow for the election of their Attorney General. Rather than providing outright for an elected 21 Attorney General, Congress deemed it best to allow the people of Guam to make that 22 determination through local legislation, In order to provide the framework for an elected 23 Attorney General, if such local legislation was to be enacted, Congress was required to create that

24 office (Attorney General) within the framework of Guam's Organic Act. Thus, Congress added a

25 new subsection (48 U.S.C. §1421g(d)) to the Organic Act and created and designated an office of

26 Attorney General of Guam. In so doing, Congress declared the Attorney General "shall be the 27 Chief Legal Officer of the Government of Guam." The Organic Act amendment became law 28 October 27, 1998. See Pub. L. No. 105-291.

Page 5001 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 5 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 70 of 94 Lourdes P. Aguon·Schulte v. Guam Election Commission, el al., Civil Case No. 04'{)0045 Jay Menill, etc. et 01. v. Guam Election Commission, et al., Civil Case No. 04·00046 Order Denying Motions to Strike aud Granting Motions to Remand 1 Because Congress did not allow outright for an elected Attorney General and there was

2 insufficient time in 1998 to pass local legislation providing for an elected Attorney General, the

3 selection of the next Attorney General (following the November 1998 gubernatorial general

4 election) would be governed by the appointment provisions of the Organic Act, i, e" by

5 Section 1421g(d)(I), The next Attorney General would thus be appointed by the Governor of 6 Guam with the advice and consent of the Legislature. Furthermore, the Attorney General would

7 serve at the pleasure of the Governor,

8 On June 9, 1999, Substitute Bill No, 52 of the 25 th Guam Legislature was signed into law

9 as P. L. 25-44 (the "Act"). The Act provided for the election of the Attorney General. The Act, 10 among other things, set forth the qualifications for the Attorney General, the procedure for the 11 election and removal of the Attorney General, and it further set forth the compensation ofthe

12 Attorney General. Thus, the enactment by the 25 th Guam Legislature of the elected Attorney

13 General bill triggered the Organic Act provisions of Section 1421 g( d)(2). The Attorney 14 General's election had to coincide with the election of Guam's governor and the Attorney

15 General would serve a four year tenu. In addition, the Attorney General could only be removed 16 under certain circumstances and a vacancy would be filled as provided under the provisions of 48

17 U.S.C. § 1421g(d)(2) of the Organic Act.

18 The Court takes note that when the Defendant Felix P. Camacho was chosen on 19 November 5, 2002 by the People of Guam as their seventh elected Governor of Guam, the People

20 of Guam also chose Douglas B. Moylan as their first elected Attorney General. 21 Whether Guam decided to elect its Attorney General or not, Congress was clear in its

22 1998 Organic Act amendment that the Attorney General was to be the Chief Legal Officer ofthe 23 Government of Guam. Congress did not articulate further the duties and responsibilities of the

24 Attorney General. One could speculate that Congress may have thought it inappropriate to 25 articulate the duties and responsibilities of that office since Guam's Attorney General had been

26 appointed since the Organic Act's inception in 1950 and continued to remain appointed (48 years

27 of gubernatorial appointments), Moreover, local legislation presently provided areas of duties

28 and responsibilities for the appointed Attorney General.

Page 6 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 6 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 71 of 94 Lourdes P. Aguon-Schulte v. Guam Election Conunission, et al., Civil Case No. 04-1JOO45 Jay Merrill, elc" et at Y. Guam Election Commission, et al., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand 1 Was Congress's then proclamation ofthe Attorney General as the Chief Legal Officer of

2 the Government of Guam merely an acknowledgment of all the existing powers of the Attorney

3 General, or did Congress intend to place a deeper and more substantive power into the office, an

4 authority and power which would negate executive as well as legislative intrusion into the

5 Attorney General's authority as Chief Legal Officer of the Government of Guam? Whatever the

6 case may be, it appears to this Court that in interpreting the Attorney General's status as Chief

7 Legal Officer of the Government of Guam, it must attempt to give full meaning and expression to

8 Congress's declaration that the Attorney General shall be the Chief Legal Officer of the

9 Government of Guam. How then does the Court give this declaration full expression and

10 meaning? As it relates to the representation issue before the Court, it appears reasonable and

11 logical to conclude that the Attorney General's authority as Chief Legal Officer would generally

12 be negated and dinilnished when an entity, agency or official within the Government of Guam is

13 represented by counsel other than the Attorney General, This Court recognizes as fundamental

14 to his authority under the Organic Act the Attorney General's ability to represent entities,

15 agencies and officers of the Government of Guam,

16 Examining the provisions of Guam's Organic Act in relation to the Office of Attorney

17 General of Guam, the Court takes note of the Attorney General's statements that only once

18 previously did Congress enact legislation for an office of the Attorney General, that being the

19 creation of the Office of the Attorney General of the United States, When Congress created the

20 Department of Justice and headed that office with the Attorney General, it reserved, however, to

21 the officers of the Department of Justice, under the direction of the Attorney General, the conduct

22 of all "litigation in which the United States, an agency, or officer thereof is a party, or is

23 interested." 28 U,S,C, § 516, Furthermore, Congress prohibited the heads of all Executive and

24 military departments, unless expressly authorized by law or exempted under section 1037 of title

25 10, from employing an attorney or counsel for the "conduct of litigation in which the United

26 States, an agency, or employee thereof is a party, or is interested, or for the securing of evidence

27 therefor, but shall refer the matter to the Department of Justice," 5 U,S,C. § 3106, Most

28 important, the Attorney General of the United States was required to "supervise all litigation to

Page 7 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 7 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 72 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, et al., Civil Case No. 04-00045 Jay Merrill, etc" e( al. v. Guam Election Commission, et al., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand 1 which the United States, an agency, or officer thereof is a party" unless otherwise provided by

2 law, 28 U,S.c, § 519.

3 In contrast, when Congress provided for the Office of the Attorney General of Guam, it

4 did not reserve to the Attorney General supervision over the conduct of all litigation in which the 5 Government of Guam's agencies and officials were parties, Congress simply proclaimed the

6 Attorney General the Chief Legal Officer of the Government of Guam, In this regard, the Court 7 notes that in 1999, the succeeding Attorney General of Guam became the first Attorney General 8 to be designated Chief Legal Officer of the Government of Guam pursuant to the provisions of

9 the Organic Act. Yet that Attorney General's ability to supervise litigation in which the 10 government's agencies or officials were involved was subject to the Governor's removal 11 authority, 12 There is little legislative history behind Congress's intent in designating the Attorney

13 General as the Chief Legal Officer of the Government of Guam, It has been argued that the

14 current designation was patterned after the designation of another state attorney general. A 15 review of state constitutional provisions and statutes does reflect that in many jurisdictions the

16 attorney general has received the designation as chief legal officer for the respective state. State 17 courts, however, differ in their interpretations of the powers and duties of their attorneys general

18 especially as it relates to the representation of state agencies and officials. Some courts have

19 taken the position that their attorney general has exclusive right to represent agencies which are 20 involved in litigation. 21 The Organic Act does not contain express language which reserves to the Attorney 22 General of Guam or the Department of Law all litigation in which the Government of Guam or

23 any of its agencies or officers are involved, A further review of Guam's statutes reveals that

24 there is no specific legislation which requires the Attorney General to represent officials of the

25 Government of Guam when sued as defendants. The Court, however, recognizes that the power 26 and authority of the Attorney General to represent such agencies and individuals is presumed and

27 implied as contained within his Organic Act designation as Chief Legal Officer of the 28 III

Page 8 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 8 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 73 of 94 Lourdes P. Aguon--Schulte v. Guam Election Commission, et al" Civil Case No 04-00045 Jay Merrill, etc" et al. v. Guam Election Commission, et al.• Civil Case No. 04-00046 Otder Denying Motions to Strike and Grunting Motions to Remand 1 Government of Guam. However, while the authority to represent government agencies and

2 officials is implied, it is not expressed. 3 II. The Roles of the Attorney General 4 The Organic Act's designation of the Attorney General as Chief Legal Officer ofthe 5 Government of Guam appears to have adopted basic common law principles regarding the

6 Attorney General's primary role: that of representing the interests of the government the attorney 7 general represents - in other words, the state interest or the public interest. As chieflegal officer

8 of the government, it is this interest that the attorney general must at all times represent. In this

9 respect, it can be said that the attorney general's real client is the state he represents or the public

10 interest he represents. It therefore necessarily embodies the principle that if the attorney general 11 finds his duties to the state and the public interest conflicting with his other duties, it is his duty 12 to represent the state and the public interest which is paramount. In this role, the attorney 13 general's responsibility has generally been regarded as being the protector and guardian of the

14 public interest, i.e., the state or government interest which he advocates, 15 In his role as guardian of the public interest and representative of the state and its

16 interests, the attorney general may bring suits against officials and agencies of the government. 17 See Moylan v, Camacho, Superior Court of Guam Special Proceeding No. SP230-03, Decision 18 and Order (November 10,2003). The Court notes that as advocate of the state government or the 19 public interest, the attorney general has generally not been restricted from prosecuting said 20 actions because of ethics considerations or the application of the rules of professional 21 responsibility to his office.

22 In addition to his role as representative ofthe state, the state's interest or the public 23 interest, the attorney general also has the dual role and responsibility of representing the

24 instrumentalities of that government, i.e., the agencies and officials in matters in which the said 25 entities are involved as parties in any litigation. While the Court has noted above that the

26 Organic Act does not expressly reserve to the Attorney General the representation of the 27 Government of Guam's agencies and officials in litigation in which they are involved, it is an 28 implied grant of authority. In order to be the Chief Legal Officer of the Government of Guam,

Page 9 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 9 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 74 of 94 Lourdes Po Aguon·Schulte v. Guam Election Commission, et al., Civil Case No. ()4·00045 Jay Merrill. etc., e/ aJ. Vo Guam Election Commission, e/ al., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand 1 the Attorney General must necessarily be the primary legal counsel for its employees and

2 agencies. It is in this vein that this matter comes before the Court As the Chief Legal Officer,

3 the Attorney General has appeared in this action as the legal representative of the Defendants.

4 The Defendants have also made entries of appearances but through separate counsel.

5 In light of the Defendants' conflicting legal representations, the Court must decide who

6 should represent the Defendants in the actions herein, Should the Court allow the Attorney

7 General to represent the Defendants to the exclusion ofthe other attorneys because he

8 exclusively represents the Governments's agencies and officials as Chief Legal Counsel? The

9 Court finds that in order to resolve this question, it must determine what role and responsibility

10 the Attorney General shoulders when undertaking the representation of the Defendants, The

11 parties offer differing positions.

12 The Attorney General argues that when he assumes the representation of the Defendants,

13 they speak through his voice, regardless of whether his voice represents their position or not.

14 This is so because he is the Chief Legal Officer of the Government of Guam, and this designation

15 prevents the Defendants from having any other attorney represent them other than the Attorney

16 General. The Attorney General justifies this position based upon the need and necessity for a

17 uniform litigation policy which can only be established by the Attorney GeneraL The Attorney

18 General cites case law in various jurisdictions establishing the Attorney General's paramount

19 right to represent government agencies and officials to the exclusion of any other attorney.

20 The Guam Election Commission and Director Taitano argue that the Attorney General's

21 motions to strike should be denied because Guam law authorizes the Commission to have its

22 own attorney. Specifically, 2 GUAM CODE ANN. § 21 03(b) authorizes the election board to retain 23 an attorney to advise the board and its executive director on all legal matters pertaining to the

24 Commission. Its attorney is also mandated to "represent the Commission in litigation in which

25 the Commission is interested or involved," The Defendants further argue that the Attorney

26 General's designation as Chief Legal Officer does not prevent the Guam Legislature from

27 allowing autonomous agencies to retain independent counsel. The election board is established

28 as an "autonomous instrumentality and an independent commission of the [G]overnment of

Page 10 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 10 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 75 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, et al., Civil Case No. 04-QOO4S Jay Menill, etc., "I al. y. Guam Election Commission, el al.. Civil Case No. 04-00046 Order Denying Motions to Strike and Grunting Motions to Remand 1 Guam," 2 GUAM CODE ANN, § 2101. The Defendants cite the court to jurisdictions which have

2 allowed public agencies to employ independent counsel to protect its rights when not prohibited

3 by statute from doing so,

4 The Governor argues he has a right to appear in this litigation to object to the stipulated

5 preliminary injunction agreed to between the Attorney General and Plaintiffs, He emphasizes

6 that he is vested with the executive authority of the Government of Guam, and the Attorney

7 General cannot strip him of his executive authority and duties through the guise of a stipUlation

8 for a preliminary injunction. The Governor further argues that once the Attorney General makes

9 a determination to represent him in these actions, the Attorney General must represent and serve

10 his client (the Governor) in the court litigation or, ifhe cannot do so, he must step aside and

11 allow the entry of independent counsel.

12 The Court has reviewed the decisions of other courts which have had to wrestle with the

13 situation similar to that presented here concerning the powers and duties of an attorney general to

14 represent state officials in civil actions, For instance, in Manchin v. Browning, 170 W, Va, 779,

15 296 S,E,2d 909 (1982), suit was brought against the secretary of state in his official capacity

16 challenging the state apportionment statute as unconstitutional. The matter was referred to the

17 attorney general, who was charged with defending suits against state officials. The secretary of

18 state agreed that the statute was unconstitutional, but the attorney general disagreed, The

19 attorney general attempted to take action that was contrary to the position of the secretary of

20 state. Because of the conflict in their respective positions, the secretary of state requested the

21 attorney general to appoint special counsel to represent him in the federal suit. The attorney

22 general refused, and the secretary of state sought relief before the West Virginia Supreme Court

23 of Appeals, The attorney general asserted that as the chieflaw officer of the state, he is "charged

24 with representing the public interest in any such litigation without interference from or the

25 approval of any other officiaL" Id, at 783, 296 S,E.2d at 913, The court did not agree with the

26 attorney general's characterization of his powers and duties with respect to suits against state

27 officials, The court stated:

28 III

Page 11 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 11 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 76 of 94 Lourdes P. Aguon-SchuJte v. Guam Election Commission, et al., Civil Case No. 04-00045 Jay Merrill, etc., et al. v. Guam Election Commission, et al., Civil Case No. 04-00046 Order Denylng Motions to Strike and Granting Motions to Remand 1 The Attorney General ordinarily exercises complete control oflitigation conducted in rus name. When the Attorney General appears in a proceeding on 2 behalf of the state in his name, he exercises his discretion as to the course and conduct of the litigation. He assumes the role of a litigant and he is entitled to 3 represent what he perceives to be the interest of the state and the public at large.

4 However, the Attorney General's representation of the state as an entity and the discretion that accompanies such representations are limited and finite 5 propositions. In some cases, '" the Attorney General is statutorily charged as an administrator of the law and appears in civil proceedings on rus own motion as the 6 agent and legal representative of the state and the citizens thereof. . ..

7 The Attorney General performs quite a different function when he appears to defend a state officer [or instrumentality] ... sued in [their] official capacity. In 8 this circumstance the Attorney General does not appear as a party to the action. That role is filled by the state officer [or instrumentality] against whom the suit is 9 brought. Rather, the Attorney General's function is to act as legal advisor and agent of the ... litigant and to prosecute or defend, within the bounds of the law, 10 the decision or policy of such officer [or instrumentality] which is called into question by such lawsuit. 11 A problem arises, however, when, as here, the policy advocated by the state 12 officer [or instrumentality] conflicts with what the Attorney General perceives to be the interest of the state. The [Attorney General] asserts that when such a 13 conflict arises, the Attorney General's duty to represent the interests of the state takes preeminence over the interests the state officer [or instrumentality] seek[] to 14 advocate. After all, he argues, any suit broUght against a state officer [or instrumentality] is, in effect, a suit against the state and the interest of the public 15 must predominate.

16 We cannot agree with the Attorney General's characterization ofrus powers and duties with respect to suits against state officials. Ordinarily the state acts only 17 through its officers and agents. ... [I]n the performance of their statutorily prescribed duties, some officers [or instrumentalities] ... are empowered to make 18 good faith policy decisions which implement the laws they administer and comport with the requirements of our constitutions. .., When the official 19 policies of a particular state officer or [instrumentality] are called into question in civil litigation, that officer or [instrumentality] is entitled to the same access to the 20 courts and zealous and adequate representation by counsel to vindicate the public interest, as is the private citizen to vindicate his [or her] personal rights. 21 22 1.Ih at 788.89, 296 S.E.2d at 918·19 (citations omitted). The Manchin court further declared: 23 Since the Attorney General is designated as the statutory counsel for state officers sued in their official capacities, he is required by the Code of Professional 24 Responsibility to make legal counsel available to those officers in such circumstances. The Attorney General is required to exercise rus independent 25 professional judgment on behalf of a state officer for whom he is bound to provide legal counsel. In this regard his duty is to analyze and advise rus clients as to the 26 permissible alternative approaches to the conduct ofthe litigation, The Attorney General should inform his client ofthe different legal strategies and defenses 27 available and of his professional opinion as to the practical effect and probability of the outcome of each alternative, so as to enable the officer to make an 28 intelligent decision with respect to how the litigation could be conducted. He

Page 12 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 12 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 77 of 94 Lourdes P. Aguon-Schul!e v. Guam Election Commission, el al., Civil Case No. 04-00045 Jay Merrill etc., et al. v. Guam El""tion Commission, et al., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions (0 Remand should then stand aside and allow his client to exercise his independent judgment on which course to pursue. We emphasize the importance of this independent 2 judgment because "advice of counsel" is not a defense to civil or criminal liability for nonfeasance, misfeasance or malfeasance in office. Once the state officer 3 whom the Attorney General represents has determined the course he desires the litigation to take, it is the duty ofthe Attorney General to zealously advocate the 4 public policy positions of his client in pleadings, in negotiations, and in the courtroom and to avoid even the appearance of impropriety by appearing to be in 5 conflict with the desires of his client.

6 In summary, the Attorney General's statutory authority to prosecute and defend all actions brought by or against any state officer simply provides such 7 officer with access to his legal services and does not authorize the Attorney General "to assert his vision of state interest." The Attorney General stands in a 8 traditional attorney-client relationship to a state officer he is required by statute to defend. His authority to manage and control litigation on behalf of a state officer 9 is limited to his professional discretion to organize legal arguments and to develop the case in the areas of practice and procedure so as to reflect and vindicate the 10 lawful public policy of the officer he represents, The Attorney General is not authorized in such circumstances to place himself in the position of a litigant so as 11 to represent his concept of the public interest, but he must defer to the decisions of the officer whom he represents concerning the merits and the conduct of the 12 litigation and advocate zealously those determinations in court.

13 Id. at 790-91, 296 S.E.2d at 920-21 (emphasis in original, internal citation omitted). The West

14 Virginia Supreme Court of Appeals further held that "[i]f, in the course of advising or counseling

15 a state officer involved in litigation, it becomes apparent that the Attorney General is unable to

16 adequately represent the officers as required by law or that such representation would create

17 professional conflicts or adversity, the Attorney General must appoint counsel to represent such

18 officer." Id, at 792, 296 S.E.2d at 922.

19 The Supreme Court of Hawaii also expressly approved and adopted the Manchin analysis.

20 See Chun v. Board of Trustees of Employees' Retirement Sys. of the State of Hawaii, 87 Haw.

21 152, 174, 952 P.2d 1215, 1237 (1998). In Chun, the retirement board refused to authorize an

22 appeal from a judgment entered in favor of the plaintiffs and against the board, but the state

23 attorney general filed an appeal on behalf of the board anyway. The Supreme Court of Hawaii

24 eventually dismissed the appeal and recognized that "the attorney general's professional

25 obligations as legal counsel to her statutory client - a public officer or instrumentality of the state

26 vested with policy-making authority - may clash with her vision of what is in the best global

27 interests of the state or the public at large," Id, at 170,952 P.2d at 1233, When the Attorney

28 General's "paramount duty to represent the public interest cannot be discharged without conflict,

Page 13 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 13 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 78 of 94 Lourdes P. Aguon-Scbulte v. Guam Election ComnUssion, et ai., Civil Case No. 04-00045 Jay Merrill, etc., et al. v. Guam Election Commission, et al., Civil Case No. 04-00046 Order Denying Motions \0 Strike and Granting Motions \0 Reroand 1 [he] may consent to the employment of special counsel by a state agency or officer." ML (quoting

2 D'Amico v. Board ofMed. Exam'rs, 112 Cal. Rptr. 786, 800, 520 P,2d 10,20 (1974).6 Thus, the

3 Chun court stated that "[h]aving perceived [himself] to be in a conflict of interest with the Board,

4 the Attorney General was ethically obligated to recommend the retention of other counsel to

5 represent the Board and to take such other action as, in [his] opinion, the circumstances

6 required," Id. at 176,952 P.2d 1239.

7 In another case, Tennessee ex reI. Comm'r ofTransp. v. Medicine Bird Black Bear White

8 Eagle, 63 S.W,3d 734, (Tenn. Ct. App. 2001), the state attorney general had been disqualified

9 from simultaneously representing the Tennessee Department of Transportation and the Tennessee

10 Commission ofIndian Affairs. The Court of Appeals of Tennessee eventually reversed the trial

11 court's ruling but stated the following with regard to the attorney general's ethical obligations:

12 By statute, the General Assembly has mandated a relationship akin to the traditional attorney-client relationship between the Attorney General and the state 13 officials and agencies the Attorney General represents. Thus, the Attorney General owes a duty of undivided loyalty to his or her clients and must exercise 14 the utmost good faith to protect their interests. The Attorney General must (1) preserve client confidences to the extent public clients are permitted confidences, 15 (2) exercise independent judgment on his or her client's behalf, and (3) represent his or her clients zealously within the bounds of the law. 16 Unlike the conflict-of-interest rules governing the conduct oflawyers 17 representing private clients, the Attorney General is not necessarily prohibited from representing governmental clients whose interests may be adverse to each 18 other. The majority rule is that the Attorney General, through his or her assistants, may represent adverse state agencies in intra-governmental disputes. This rule 19 applies, however, only when the Attorney General is not an actual party to the litigation. When the Attorney General is an actual party to the litigation, 20

22 6 The Supreme Court of Hawaii also recognized that because of the Attorney General's various statutorily mandated roles, the Hawaii Code of Professional Responsibility ("HRPC") 23 could not be mechanically applied to the Attorney General's office. Chun, 87 Haw. at 173, 952 P.2d at 1236 (quoting Hawaii v. Klattenhoff, 71 Haw. 598,602,801 P.2d 548,550-51 (1990). 24 Nevertheless, the court stated that the Attorney General's office was never relieved of all 25 obligations to conform its conduct to the HRPC, which was applicable to all attorneys licensed to practice in the Hawaii courts. Id. at 174,952 P.2d at 1237. Specifically, the court discussed 26 HRPC Rule 1.7 dealing with conflicts of interest and the comments to said rule which explained that "loyalty to a client is ... impaired when a lawyer cannot consider, recommend, or carry out 27 an appropriate course of action because of the lawyer's other responsibilities or interests." Id. 28 (quoting comment [4] to HRPC Rule 1.7). This rule is similar to Rule 1.7 of the Guam Rules of Professional Conduct.

Page 14 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 14 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 79 of 94 Lnurdes P. Aguon-Schul!e v. Guam Election Commission, et aI., Civil Case No. 04-00045 Jay Merrill, etc., el al. v. Guam Election Commission, et a/., Civil Case No. 04-00046 Order Denying Motions to Strike and Grunting Motions to Remand 1 independent counsel should be appointed for the state agency in order to remedy the ethical impediment to the Attorney General's position as a party. 2

3 Id.,63 S.W.3d at 773 (citations omitted),

4 Again, the Court points out the Attorney General's position that only he is authorized to

5 represent the named Defendants and that the named Defendants have no voice. The Attorney

6 General contends that the Defendants' voice, if any, is what he decides is the government's legal

7 position or what he determines to be the governmental or public interest. The Court has alluded

8 above to the Attorney General's authority to sue government entities, agencies and officials on

9 behalf of the public interest, Such was the case in Moylan v. Camacho. Therein, the Attorney

10 General sued the Governor to compel the appointment of members to the Guam's Procurement

11 Board. In that case, the Governor retained the same firm representing him in these cases, The

12 Attorney General never moved to strike the appearances of the Governor's independently

13 retained counsel. A motion to strike was never made because it would have been a conflict of

14 interest for the Attorney General to sue the Governor and represent him at the same time.

15 Moylan v, Camacho thus stands for the proposition that independent counsel may be retained to

16 defend a government official in a case where the Attorney General has a conflict of interest.

17 In determining whether to strike the appearances of the defendants' independent

18 attorneys, the Court looks at the nature of the appearances and the reasons for it. In these

19 consolidated cases, the Plaintiffs have sued the Defendants to obtain an injunction declaring that

20 the Guam Election Commission violated the law by failing to mail ballot pamphlets which

21 contained the complete text of the Proposal A gambling initiative which was to be voted upon

22 during the November 2004 general election, The Court notes that prior to the Defendants filing

23 answers to the Complaints, the Attorney General filed a notice of removal of both cases to this

24 Court, At the same time that the Attorney General filed the removal, it submitted a "Stipulation

25 and Order for Preliminary Injunction," The stipulation provided:

26 1. With respect to the scheduled November 2, 2004 election on the Guam Casino Gaming Commission Act, otherwise known as Proposal A ("the Proposal A"), the 27 Guam Election Commission and the Executive Director of the Guam Election Commission failed to follow the relevant Guam election statutes and duly adopted 28 Guam election rules governing the peoples' right to vote by initiative,

Page 15 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 15 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 80 of 94 Lourdes P. Aguon·Schuite v. Guam Election Commission, el al., Civil Case No. Q4..00045 Jay Merrill, etc., el al. v. Guam Election Commission, et al., Civil Case No. 04"()(){)46 Order Denying Motions to Strike and Granting MOlions to Remand 1 Specifically, the failure to follow Guam law constituted a violation of vested rights ofthe registered voters of Guam under the First and Fourteenth 2 Amendments to the United States Constitution, and under the Organic Act, 48 U,S.C. §§ 1421(b) and 1422(a). 3 2. The scheduled November 2, 2004 election on Proposal A is constitutionally, 4 organically and statutorily invalid as a result of their failure of the Guam Election Commission and the Executive Director of the Guam Election Commission to 5 follow all relevant Guam election statutes duly adopted election rules related to the peoples' right to vote by initiative. 6 3. Pending further order of this Court, the Guam Election Commission and the 7 Executive Director of the Guam Election Commission, their agents, employees and assigns, and all those acting in concert with them, are preliminarily enjoined 8 from counting, tabulating or certifYing the results of any votes for or against Proposal A, and if that is not possible without affecting the other races for elected 9 office, from printing or in any manner reporting, disclosing or certifYing the results of any votes for or against Proposal A, whether by absentee ballot or 10 otherwise, in connection with the scheduled November 2,2004 election of Proposal A. This provision does not prevent defendants from moving for the 11 disclosure of the results ofthe vote on Proposal A, after the November 2, 2004 election. 12

13 The filing of the proposed stipulation caused a flurry of filings of entries of appearances

14 by the then named defendants and objections to the proposed stipUlation. IMina Bente Siete Na

15 Liheslaturan Guahan (the 27'h Guam Legislature) and the Governor filed appearances through

,h 16 independent counsel on October 28 , and the Guam Election Commission and Executive

17 Director Taitano subsequently filed their entries. The Defendants made appearances for the

18 purpose of opposing the execution of the proposed stipulation by this Court.

19 Had the Court executed and approved the proposed stipulation, this would have resulted

20 in (1) the scheduled November 2, 2004 vote on Proposal A being found to have constituted a

21 violation of the rights of the registered voters of Guam under the First and Fourteenth

22 Amendments ofthe United States Constitution and under the Organic Act; (2) the scheduled vote

23 on Proposal A being found by the Court to be unconstitutional, inorganic, and statutorily invalid

24 based upon the Election Commission and Executive Director Taitano's violation of Guam's laws

25 and rules relative to the people's right to vote by initiative; and (3) the Election Commission

26 would have been enjoined from tabulating the results of the votes on Proposal A on

27 November 2, 2004.

28 III

Page 160f21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 16 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 81 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, e/ aI., Civil Case No. 04-00045 Jay Merrill, etc., et al. v. Guam Election Commission, et ai" Civil Case No. 04-00046 Order Denying Motions to Strike and Grnnting Motions to Remand 1 When the Attorney General entered his appearance on behalf of the Defendants, he did so 2 in his role as protector and guardian of the public and government's interest and representative of

3 the Government of Guam, He has come to Court - argued and advocated the legal position of 4 the Government of Guam and his views as protector and guardian of the public interest. He has

5 not advocated and is not advocating the legal positions ofthe Defendants. The Defendants

6 maintain and advise the Court that they have complied with Guam law relating to the people's 7 right to vote by initiative. Furthennore, they believe that the Proposal A vote on

8 November 2, 2004 was constitutional, organic and statutorily valid. The Court finds the 9 positions of the Attorney General and the Defendants to be directly in conflict. 10 The Defendants entered their appearances and sought only to have their voices heard and

11 their positions defended. Their voices will not be heard and their positions will not be defended 12 if the Court grants the Attorney General's motions to strike their attorneys' appearances. As the 13 Court has pointed out, in the Moylan y. Camacho case, the Attorney General never questioned

14 the ability of the Governor to procure independent counsel. He legally could not because the

15 matter involved a clear conflict and resulted in the representation of the Governor by independent 16 counsel.

17 Having entered his appearance as attorney for the Defendants, the Attorney General has a

18 duty to zealously represent the interests of these Defendants. This entails representing and 19 zealously defending their positions. The Attorney General, however, did not enter his 20 appearance for the purpose of advocating or defending the Defendants' positions. He entered his 21 appearance on behalf of these Defendants for the purpose of advocating the position of the

22 Government - what he believes is in the public interest and should be the legal position ofthe 23 Government. In essence, he has advocated the position of his primary client (the public and 24 governmental interest) and not those of his secondary clients (the respective Defendants)_ While

25 the Court does not deny that the Attorney General can advance and advocate the public and

26 governmental position, he cannot do so in the name of and at the expense of the Defendants in 27 this case, his secondary clients. In essence, the Attorney General, in substance, has appeared as

28 III

Page 17 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 17 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 82 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, e/ 01., Civil Case No. 04-00045 Jay Merrill, etc., et 01. v. Guum Election Commission, et 01., Civil Case No. 04·00046 Order Denying Motions to Strike and Grunting Molions to Remand 1 a separate party in this action even though he has not formally entered an appearance as a

2 separate party.

3 The Court thus fmds and concludes that under the circumstances of these cases the

4 Attorney General has a conflict of interest. The Attorney General has chosen to exercise his dual

5 role as (1) representative of the government and protector of the public interest and (2)

6 representative and attorney for the Defendants. The Attorney General cannot represent both

7 interests because these interests directly conflict with each other. Moreover, the Attorney

8 General has confused the issue further by advocating the public and governmental interest in his

9 representation of the Defendants. This poses a direct conflict of interest. See Rule 1.7(a) of the

10 Guam Rules of Professional Conduct.7 Under the authorities cited by the Court, once the

11 Attorney General decides to undertake the representation of an governmental agency andlor a

12 public official, he has a duty to zealously defend the positions advocated by the said agency or

13 official. If he is unable to do so, the Attorney General must allow the party to be represented by

14 independent counsel. Based upon the conflicts which are clearly apparent in these cases, the

15 Court finds there is a need for independent counsel to represent the Defendants. The Court

17 7 This rule provides: 18

19 RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the 20 representation involves a concurrent conflict of interest. A concurrent conflict of interest 21 exists if: (1) the representation of one client will be directly adverse to another client; or 22 (2) there is a significant risk that the representation of one or more clients will 23 be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 24 25 Like other courts, this Court recognizes that the Guam Rules of Professional Conduct can not be mechanically applied to the Attorney General's office. Nevertheless, the 26 unique circumstances presented here clearly present a direct conflict of interest for the Attorney General. Additionally, the Court takes judicial notice of the fact that the 27 Attorney General's civil division is comprised of a small number of attorneys such that it 28 would not be feasible for an assistant attorney general to represent the Defendants in this dispute.

Page 18 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 18 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 83 of 94 Lourdes P. Aguon-Schulte v. Guam Election Commission, et al .. Civil Case No. 04-00045 Jay Merrill, etc .••1 al. Y. Guam Election Commission. e/ al.. Civil Case No. 04-00046 Order Denying Motions to Strike and CiIanting Motions to Remand 1 comes to this conclusion based upon its finding that the Attorney General has opined and 2 concluded that the election board has violated the initiative law and that the Proposal A election 3 was unconstitutional, inorganic and statutorily invalid. The Defendants do not share these

4 positions and the Attorney General cannot defend these positions. The Court must therefore

5 deny the Attorney General's motions to strike the appearances of the attorneys for the

6 Defendants. In so doing, the Court notes that the more appropriate action would have been for 7 the Attorney General to intervene and join this action as a co-plaintiff, or the Attorney General 8 could maintain a new and separate suit against the Defendants rather than espousing the

9 government's position in the course of the representation of the Defendants. 10 The Guam Election Commission has asked the Court to decide the constitutional issue

11 which the Attorney General has advocated before the Court. The election board asks the Court to 12 find that Guam law authorizes the commission to retain its own attorneys to represent them in

13 this matter. It also asks this Court to affirm the recent opinion by the Supreme Court of Guam on

14 the same subject matter. The Court finds that it is not necessary to a decision of this case for this 15 Court to make a fmding that the Election Commission has authority to retain its own attorneys to

16 represent the board in this case nor does such a finding resolve the representation issues before 17 the Court. Assuming, the constitutionality ofthe statute authorizing the Board to retain an 18 attorney to advise the board and its executive director on all legal matters pertaining to the

19 Commission, the statute does not authorize the board's counsel to represent Executive Director 20 Taitano in this litigation. The Court will decline ruling on that issue until it is necessary to do so 21 as federal courts generally avoid deciding constitutional issues if a case can be resolved on other 22 grounds. See Lvng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439,445, 108 S. 23 Ct. 1319, 1323 (1988) ("A fundamental and longstanding principle of judicial restraint requires

24 that courts avoid reaching constitutional questions in advance of the necessity of deciding 25 them.").

26 III. Motions to Remand Action to the Superior Court 27 Having decided to recommend denial of the Attorney General's motions to strike the

28 appearances of counsel representing the Defendants, the Court must therefore also recommend

Page 19 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 19 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 84 of 94 Lourdes P. Agtion-Schulte v. Guam Election Commission, e/ aI., Civil Case No. 04.{)()()45 Jay Merrill, etc" et al. v. Guam Election Commission, ef aI., Civil Case No. 04-00046 Order Denying Motions to Strike and Granting Motions to Remand 1 that this matter be remanded to the Superior Court of Guam because the Defendants have not 2 consented to the removals, Unanimous consent to the removal by all defendants is a procedural

3 requirement under 28 U,S.C, § 1446 for federal question removal under Section 1441. The Ninth

4 Circuit has stated that "[o]rdinarily, under 28 U.S,C. § 1446(a), all defendants in a state action

5 must join in the petition for removal." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.l 6 (9th Cir. 1988). "The failure to join all proper defendants in a removal petition may otherwise 7 render the removal petition procedurally defective." Id. See also Parrino v. FHP, Inc., 146 F.3d

8 699,703 (9th cir. 1998), cert. denied, 119 S. Ct. 510 (1998); Hewitt v, City of Stanton, 789 F.2d 9 1230, 1232-33 (9 th Cir. 1986). Because the Attorney General did not obtain the consent of the 10 Defendants when he removed this action, the removal of these cases from the Superior Court of 11 Guam to this Court was procedurally defective and improper. 12 The Court therefore recommends to the District Judge that the Attorney General's

13 motions to strike be denied and the Defendants' motion to remand be granted. The Court fInds 14 the posture ofthe instant case to be the rare case. Normally, government entities and offtcials 15 appearing before the Courts will fInd representation in their respective litigations by the Attorney 16 General. This must be the case because the Attorney General is the Chief Legal Officer ofthe 17 Government of Guam. In exercising his powers of representation in cases similar to the one 18 before this Court, the Attorney General must decide whether he wishes to advocate the position 19 of (1) the government (the public interest) or (2) the government entity or offtcial involved in the 20 litigation. If the Attorney General desires to advocate the public interest, he must determine 21 whether in the course of representing the public interest he will still be able to zealously advocate 22 and represent the interests and desires of the named government entity or official. Ifhe is unable 23 to do so, or ifhe fInds the agency or official's position to be in contlict with his position, the 24 Attorney General should allow the aggrieved agency or government official to be represented by 25 independent counsel. 26 The Court finds its recommendations and fIndings herein to be reasonable. Imposing a 27 duty upon the Attorney General to zealously represent the interests of the clients for which the

28 Attorney General has entered his appearance allows those clients to have a voice in the Court

Page 20 of21 Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 20 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 85 of 94 Lourdes P. Agyon-Schulte Y. Guam Election Commission, et ai" Civil Case No. 04-00045 Jay Merrill, <;le., et al. Y, Guam Election Commission el aI., Civil Case No. 04-00046 Order Denying Motions to Strike and Graoling Motions to Remand 1 proceeding_ It is crucial in cases similar to the one before the Court that a government agency

2 which maintains that it has not violated election initiative laws, even though the Attorney

3 General has concluded that it has, have the necessary representation to argue and defend that

4 position in the litigation_ A failure by this Court to allow that defendant's voice to be heard is a

5 failure by the court's system of fairness and justice_

6 CONCLUSION

7 Based on the Court's findings and recommendations, IT IS RECOMMENDED that the

8 Attorney General's motions to strike the appearances of the Defendants' private counsel be

9 denied and the Defendants' motions to remand these cases back to the Superior Court of Guam

10 be granted, 11 Dated this 16/A day of March 2005_ 12

15 NOTICE 16 Failure to serve and fIle written objections to the Report's fmdings and 17 recommendations within ten (10) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendations 18 before the assigned/designated District Judge. 28 U.S.C. § 636(b)(1).

19 Notice is hereby given that3J;~ was 20 entered on the docket on 0 . No seperate notice of entry 00 docket will 21 be issued by this Court. Mary L. M. MOI'8!l 22 ~OfOuam ~ 23 By. '3 (ltclo'S. ~ury Cler~ Date 24

25 26

27 28

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2 Douglas B. Moylan 3 Attorney General of Guam Robert M. Weinberg Assistant Attorney General 4 Civil Division Guam Judicial Center. Suite 2-200E 5 . 120 West O'Brien Drive Hag~tfia. Guam 96910. USA 6 , (671) 475-3324 • (671) 472-2493 (Fax)

1. ; Attorneys for tbe Government of Guam 8 IN THE DISTRICT COURT FOR THE TEIDUTORY OF GUAM 9

10 LOURDES P. AGUON-SCHULTE, ) 11 ) Plaintiff, ) Civil Case No. CIV04-00045 12 ) vs. ) (removed from the Superior Court of Guam 13 ) Civil Case No. CV -1103-04) ) THE GUAM ELECTION COMMISSION, 14 ) , et a1. ) STIPULATION AND ORDER FOR ) Defendants. ) PRELIMINARY INJUNCTION 16 ~------) 17 COME NOW Plaintiff Lourdes P. Aguon-Schulte, tlrrough her attorneys Dooley Roberts 18 & Fowler LLP, by Thomas L. Roberts, Esq., and all of the Defendants named herein, represented 19 by their counsel, the Office of the Attorney General, Government of Guam, by Assistant 20 Attorney General Robert Weinberg, and hereby stipulate as follows: 21 With respect to the scheduled November 2, 2004 election on the Guam Casino 22 23 Gaming Control Commission Act, otherwise known as Proposal A ("Proposal A"), the Guam . :; 24 Election Commission and the Executive Director of the Guam Election Commission failed to

25 follow the relevant Guam election statutes and duly adopted Guam election rules governing the

Page 1 EXHIBIT A Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 22 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 87 of 94

1 peoples' right to vote by initiative. Specifically, the failure to follow Guam law constituted a

violation of vested rights of the registered voters of Guam under tbe First and Fourteenth

3 Amendments to the United States Constitution, and under the Organic Act, 48 U.S.C. §§ 1421(b)

and 1422(a).

2. Tbe scheduled November 2, 2004 election on Proposal A is constitutionally, 6 organically and statutorily invalid as aresuIt oftbe failure of the Guam Election Commission 7 and the Executive Director of the Guam Election Commission to follow all relevant Guam 8 election statutes and duly adopted election rules related to the peoples' right to vote by initiative. 9 3. Pending further order oftbis Court, the Guam Election Commission and the 10 2 Executive Director ofthe Guam Election Commission, their agents, employees and assigns, and 11

12 aU those acting in concert with them, are preliminarily enjoined from counting, tabulating or

13 certifying tbe votes for or against Proposal A, and ifthat is not possible without affecting the

14 other races for elected office, from printing or in any manner reporting. disclosing or certifying

15 the results of any votes for or against Proposal A, whether by absentee ballot or otherwise, in

16 connection with tbe scheduled November 2, 2004 election on Proposal A. This provision does

17 not prevent defendants from moving for tbe disclosure oftbe results of the vote on Proposal A, 18 . t after tbe November 2, 2004 election.

24 25

Page 2

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. 1 4. All further Proceedings in this case shall be held on the __ day of J . '- 2 ______, 2004 at the hour of _____- .m. to address Plaintiff's

3 remaining claims for relief as well as any and all other issues the parties may wish to raise, 4 DOOLEY ROBERTS & FOWLER LLP 5

7 Dated: October 27, 2004 By: ~ 8 THOMAS L. ROBERTS Attorneys for Plaintiff Loutdes P. Aguon-Scbulte ~ . j 1~ II 1i II 12 DOUGLAS B. MOYLAN Attorney General of Guam 13

15 Dated: October 27, 2004 By:

16 Attorneys for Defendants the Commission, Gerald A. Taitano, in s capacity a 17 the Executive Director of the Electio Commission, I Mina' Bente Siete Na Libesla Guahan (The 27,b Guam Legislature); Felix P 18 Camacho, In His Official Capacity As The Governo 19 Of Guam 20

21 SO ORDERED: this ___ day of ______-', 2004. 22 2~ RECEIVED 2' OCT 27 200lt HONORABLE ALEX R. MUNSON Judge, District Court of Guam 25 ISTRICT COURT OF GUAM HAGATNA,GUAM

,.' Page 3

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Cesar Cabot, Esq. For Guam Election Commission Gerald Taitano Shannon Taitano, Esq. For Governor of Guam Therese Terlaje', Esq. Legislature of Guam Joaquin C. Arriola, Jr., Esq. For proposed Intervenor, Lina'La'Sin Casino

Page 4

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2 Douglas B. Moylan Attorney General of Guam 3 Robert M. Weinberg Assistant Attorney General 4 Civil Division Guam Judicial Center, Suite 2·200E 5 120 West O'Brien Drive Hag5.tiia, Guam 96910. USA 6 (671) 475-3324 • (671) 472*2493 (Fax)

7 Attorneys for the Government of Guam 8 IN THE DISTRICT COURT FOR THE TERRITORY OF GUAM 9

10 JAY MERRILL, etc., et aL, ) 11 ) Plaintiff, ) Civil Case No. CIV04-00046 12 ) (removed from the Superior Court of Guam VS. ) 13 ) Civil Case No. CV-llll-04) ) THE GUAM ELECTION COMMISSION, 14 ) et al. ) STIPULATION AND ORDER FOR 15 ) Defendants. ) PRELIMINARY INJUNCTION 16 ------) 17 COME NOW Plaintiff Lourdes P. Aguon-Schulte, through her attorneys Dooley Roberts 18 & Fowler LLP, by Thomas 1. Roberts, Esq., and all of the Defendants named herein, represented 19 by their counsel, the Office of the Attorney General, Government of Guam, by Assistant 20 Attorney General Robert Weinberg, and hereby stipUlate as follows: 21 1. With respect to the scheduled November 2, 2004 election on the Guam Casino 22 23 Gaming Control Commission Act, otherwise known as Proposal A ("Proposal A"), the Guam '5 24 Election Commission and the Executive Director of the Guam Election Commission failed to

25 follow the relevant Guam election statutes and duly adopted Guam election rules governing the

Page I EX1IJ.BIT B Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 26 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 91 of 94 . ' •

I peoples' right to vote by initiative. Specifically, the failure to follow Guam law constituted a

2 violation of vested rights of the registered voters of Guam under the First and Fourteenth :3 , .:, Amendments to the United States Constitution, and under the Organic Act, 48 U.S.C. §§ 1421(b)

4 and 1422{a). 5 2. The scheduled November 2, 2004 election on Proposal A is constitutionally, 6 organically and statutorily invalid as a result of the failure of the Guam Election Commission 7 and the Executive Director of the Guam Election Commission to follow all relevant Guam 8 election statutes and duly adopted election rules related to the peoples' right to vote by initiative. 9 3. Pending further order of this Court, the Guam Election Commission and the 10 Executive Director of the Guam Election Commission, their agents, employees and assigns, and 11 12 all those acting in concert with them, are preliminarily enjoined from counting, tabulating or " 13 certifying the votes for or against Proposal A, and if that is not possible without affecting the

14 other races for elected office, from printing or in any manner reporting, disclosing or certifying

15 the results of any votes for or against Proposal A, whether by absentee ballot or otherwise, in

16 connection with the scheduled November 2, 2004 election on Proposal A. This provision does 17 not prevent defendants from moving for the disclosure of the results of the vote on Proposal A, 18 after the November 2, 2004 election. 19 20

Page 2

Case 1:04-cv-00046 Document 106 Filed 03/16/05 Page 27 of 29 Case: 13-16941, 02/07/2014, ID: 8971543, DktEntry: 21, Page 92 of 94 ..( . i ."" ,- I 4. All further Proceedings in this case shall be held on the ~ day of

2 ______,2004 at the hour of ______,m. to address PlaintifPs

'3 remaining claims for relief as well as any and all other issues the parties may wish to raise. 4 DOOLEY ROBERTS & FOWLER LLP 5

7 Dated: October 27, 2004 By: ~ S THOMAS L. ROBERTS Attorneys for Plaintiff Lourdes P. Aguon-Schulte <)

10 II 11

12 II DOUGLAS B. MOYLAN Attorney General of Guam 13

15 Dated: October 27, 2004 By:

16 Attorneys for Defendants the Connnission, Gerald A. Taitano, in . 17 the Executive Director of the Electio Y Commission, 1 Mina' Bente Siete a Liheslatu Guahan (The 27 1h Guam Legislature); Felix P 18 Camacho, In His Official Capacity As The Governo OfGuarn 19

21 SO ORDERED: this __~ day of ______--', 2004.

22 RECEIVED OCT 27 20lJ4 HONORABLE ALEX R. MUNSON DISTRICT COURT OF G Judge, District Court of Guam HAGATNA, GUAM UAM

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CERTIFICATE OF SERVICE

I hereby certify that on February 7. 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/Cheryl Untalan