Attorney General of Guam v. (1) Agreement Between Guam Homeland Security Office of Civil Defense

Opinion

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2 2023JM125 PM12:23 3

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In The Superior Court of Guam

ATTORNEY GENERAL OF GUAM, CIVIL CASE NO.: CV0924-21 7

8 Petitioner, V. 9 (I) AGREEMENT BETWEEN GUAM HOMELAND SECURITY OFFICE OF CIVIL DECISION AND ORDER ii DEFENSE AND SENTRY HOSPITALITY (MO HON TO FILE AMICUS CURIAE BRIEF) CORP. DBA DAYS INN; (2) AGREEMENT 12 BETWEEN GUAM HOMELAND SECURITY OFFICE OF CIVIL DEFENSE AND SENTRY HOSPITALITY CORP. DBA 14 WYNDHAM GARDENS, GUAM; (3) AGREEMENT BETWEEN GUAM ‘5 HOMELAND SECURITY OFFICE OF CIVIL 16 DEFENSE AND MARIANAS PROPERTIES, LLC DBA PACIFIC STAR RESORT & SPA; 17 AND (4) AGREEMENT BETWEEN GUAM HOMELAND SECURITY OFFICE OF CIVIL IS DEFENSE AND BEACH RESORTS, LLC DBA HOTEL SANTA FE, GUAM,

20 Defendants.

22 INTRODUCTION

23 This matter came before the Honorable Arthur R. Barcinas on the 4th day of November, 24 2022, for a scheduling conference and hearing on the Motion to File an Amicus Curiae Brief 25 (“Motion”) brought by Robert Klitzkie, Esq. (“Klitzkie”). Attorney Douglas Moylan

represented Klitzkie, Aomey James Canto II represented the Petitioner (hereinafter “AG”),

Attornei’ General of Guam v. Agreement Between Guam Homeland Securiiv Office of Civil Defense and Sentry Hospitality Corp., dba Days Inn, ci aL, CV9242 I DECISION & ORDER Page I of4 I and Leslie Travis represented the Real Party in Interest (hereinafter “Governor”). The Court 2 now issues the following Decision and Order on the Matter. 3 BACKGROUND 4 The Motion arises from a Complaint for Declaratory Relief (“Complaint”) brought by

6 Petitioner, the Attorney General of Guam (“AG”) on Dec. 27, 2021. Compl., at 1-2. The

Complaint was filed in rem against the Government of Guam’s contractual interests, in order to

: l0 determine the validity of the Government’s property interest with regard to its establishment of

quarantine stations as part of the pandemic response. Id. at 2. Defendants in rem are the

Government’s property interests in two agreements between Guam Homeland Security &

12 Office of Civil Defense and Sentry Hospitality Corp., one agreement between Guam Homeland 13 Security & Office of Civil Defense and Marianas Properties, LLC, and one agreement between 14 Guam Homeland Security & Office of Civil Defense and Beach Resorts, LLC. The Real Party 15 in thterest is Governor of Guam Lourdes Leon Guerrero (“Governor”), represented by legal 16 17 counsel Leslie A. Travis and Cheerful Catunao. Id. at 3.

18 Klitzkie filed the Motion on Feb. 14, 2022, bringing the motion as a “Guam taxpayer,

resident, and Officer of this Court.” Mot., at 1. Klitzkie seeks to submit an amicus curiae brief 20 “addressing the issues of (i) Justiciability and Jurisdiction and (ii) Separation of Powers 21 between the Branches of Government for the above action before deciding the action on its 22 23 merits[,]” Id, The Governor opposes the Motion, arguing that the existing parties are already

24 represented by competent counsel, that Klitzkie is “inappropriately seeking to argue on behalf

of a phantom adversarial party,” and that the proposed amicus fails to present useful “unique

information or perspective” that is beyond the help that the lawyers for the parties can provide.” 27

Attorney General of Guam v. Agreement Between Guam Homeland Security Office of Civil Defense and Sentry hospitality Cot p., dba Days inn, et al., CV924-2 I DECISION & ORDER Page 2 of 4 1 Opp. to Mot. to File Amicus Curiae Br. (“Opposition”), at 4, 10. The Court held a hearing on 2 November 4, 2022 and subsequently took the matter under advisement. 3 DISCUSSION 4 I. The Court Has Broad Discretion to Grant a Motion to File an Amicus Curiae Brief. 6 There are few standards for the admission of amicus curiae briefs at the trial level, but 7

8 the decision to permit a nonparty to submit a brief as amicus curiae is typically a mailer of

9 judicial grace. Nat. Org. for Women, Inc. v. Scheidler, 223 F.3d 615 (7th Cir. 2000). Guam has tO adopted the Federal Rules of Civil Procedure and relies on federal precedent as highly II persuasive when interpreting the Guam Rules of Civil Procedure. Ukau v. Wang, 2016 Guam

26 ¶ 28. The Federal Rules of Civil Procedure do not have a mle in regards to submission as an

14 amicus curiae. Therefore, this court turns to the treatment of the submission by the Federal

IS District Courts. Many courts have found that there is broad discretion to grant non.parties 16 permission to file as amicus curiae in any case ifjustified by the circumstances. Northern Ii Securities Co. v. U.S., 191 U.S. 555 (1903). Additionally, the granting or denial of leave to 18 intervene as am icus curiae lies wholly within the discretion of the trial court, and is not 19 20 reviewable on appeal. Clark v. Sandusky, 205 F.2d 915 (7th Cir. 1953).

21 II. Subject Matter Jurisdiction Cannot Be Waived and Therefore the Issues 22 Raised by the Motion are Not Precluded. 23 The Guam Supreme Court has held that any issues raised in an amicus brief will not be

24 considered by the court if they have not been raised by either of the parties. Guam YTK Corp. v.

Port Authority of Guam, 2019 Guam 12 ¶ 19 (citing Hartig Drug Co. v. Senju Pharm. Co. 836

Attorney General of Guam v Agreement Between Guam Homeland Security Office of Civil Defense and Sentry Hospitality Coip., dIm Days Inn, at at., CV9242 I DECISION & ORDER Page 3 of 4 F.3d 261, 267 (3d. Cir. 2016).’ While additional issues may not be raised the issue brought in 2 the Motion is a question of subject matter jurisdiction, which cannot be waived and may be 3 raised at any time. Guam Mem ‘1 Hasp. v. Super. Ct, 2012 Guam 17 ¶ 8. As noted by the Hartig 4

court an amicus cannot expand the scope of appeal but federal courts have an independent

6 obligation to determine whether subject matter jurisdiction exists. 836 F.3d at 267. The Court

finds that the issue of subject matter can be raised at any time and therefore the issues presented 8 in the amicus curiae are not precluded. 9 Accordingly, the Court GRANTS Klitzkie’s Motion to File an Amicus Curiae Brief 10 CONCLUSION AND ORDER

12 Based upon the foregoing reasons, Klitzkie’s Motion to File an Amicus Curiae Brief is ‘ GRANTED. 14 The Court notes that under the Guam Appellate Rules of Procedure the Motion for IS Leave to File must include the proposed brief in addition to the movant’s interest and the 16 reason why the amicus brief is desirable and relevant. Guam R. App. P. 14(b)(1)-(2). The Court

l8 ORDERS that Klitzkie file the proposed amicus curiae brief withing thirty (30) days of this 19 Order. 20

SO ORDERED iAN 252023 22

25 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 26

28 There may be a question if this rule applies to a trial court instead of an appellate court. This Court will not address this question because the Motion raises the issue of subject matter jurisdiction, which cannot be waived and may be raised at any point in the proceedings. Attorney General of Guam v. Agreement Between Guam Homeland Security Office of Civil Defense and Sentry !!ospitaliiv L’otp., dba Days Inn, ciat, Cv924-21 DECISION & ORDER Page 4 of 4