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6 Atrorney General of Guam, ) CIVIL CASE NO. CV0166-03
7 Plaintiff, V. 8 Findings of Fact and Carl T.C. Gutierrez; Davina M. Lujan; Concluiions of Law 9 Robert H. Kono; Phillip J.-Tyding-co; Brooks Lynch TYdingco& Quan, LLP: 10 Vivien ga:ytoyan--Sagisi; and Does A-M,
11 Defendant.
T2 This matter came before Judge Pro Tempore Richard H. Benson for trial on April 22 13 General Benjamin througtr April 30, 2009. Plaintiffwas represented by Assistant Attonrey 1.4 Perez and Delia M. Abrams. Defendant Davina Lujan was rqlresented by Attorney Peter c. 15 S. Lujan. Defendant Gutierrez was represented by Attorney F. Randall Cunliffe. The other t6 and considered the Defendants were dismissed in pretrial proceedings. Having liste'ned t7 into evidence, testimony of the witnesses, received and examined the exhibits introduced 18 the following findings and duly considered the arguments of the attomeys, the court makes r9 of fact and conclusions of law. 20 BACKGROUND 2l 21,2003' In This matter arises out of a complaint brought by the Plaintiffon February 22 pursuant to the its complaint the Plaintiffasserts the court has jurisdiction over this matter 23 code and the authority designated to it in Section Laza@)of Title 48 of the united states 24 Guam Legislature's grant of original jurisdiction in Section 3105 of Title 7 of the Guam 25 public money Code. Compl. at2. Theplaintiffgenerally alleges that Defendants spent with Dr' a $300,000'00 settlement agreement I illegally when they approved and signed
2 VivienBatoyanandauthorizedthedisbursernentofthesefunds.Id.at5and6.Subsequent the court on to a motion for summary judgment' J to the filing of the complaint, pursuant Lujan's potential liability to $100'000'00' 4 November 26,20o4,1imited Defendant FINDINGS OF FACT' 5 and manner of responding of the 6 1. After observing the de,meanor, character, appearance 7 witnesseswhotestifiedinthismatter,thecourtmakesthefollowingdeterminationsof
8 credibility and specific findings of facts:
9 a)ftecourtfindsthetestimonyofThereseHartwascredible,truthfulandhonest.
10 Specificallythecourtfindsthefollowingfacttobecredibleandtrue:
11 1)thatshewasassignedbyDefendantGutierreztoassisthimwiththeadministration
12 of the hosPital; to recognize the handwriting' 13 2) thatshe had the knowledge, experience and ability Gutierrez conveyed to herby means of t4 instructions, and intentions of Defendant
15 Post-it Notes; of the Guam authority to act as the Administrator L6 3) that Defendant Gutierrez had the
t7 MemorialHospital(hereafterGMH)andmandatehowthegeneralfundsofthe
18 hospital be sPent; charge of the hospital administrator' wasi in 19 4) that Defendant Gutierrez acted like
20 payrollandthepayrnentstoDr.Batoyan,signedGMHchecks,andwasiderrtified
2T astheadministratoronthehospitalidentificationcards; the Defendant Gutierrez was going I
whether 22 5) that Defendant Lujan inquired about
23 its findings of fact the Stipulation of Undisputed 24 r By reference the court incorporates into Facts signed by the p;;t ;d fled with the court on April 20'2009' 25 Page2of 19 by the I to settle with Dr. Vivian Batoyan prior to Ms. Hart being instructed
2 Defendant Gutierrez to pay Dr. Batoyan;2 a 6) that in December of 2000 Defendant Lujan discussed moving GMH's Risk J had written a report about 4 Manager, Robert soldier, to mental health because he Soldier about the 5 the Batoyan settlement; that Ms. Hart decided not to tell for him to know; and 6 Batoyan settlernent because she thought there was no need to Dr' Batoyan'3 7 that she felt pressured to issue the third $100,000.00 check was truthful and 8 b) The court finds the testimony asserted by John A. B. Pangelinan and true: 9 honest. specifically the court finds the following facts to be sredible last payment was made to 10 1) that between May 2000 and through the time after the
11 Dr.Batoyan,hewasemployedasthecomptrollerforGMH;
12 2) thatat the direction of Ms. Hart he prepared the payments to Dr' Batoyan; Tenorio and Ms' 13 3) that prior to issuing the third and final check he informed Josh
l4 Hartthatheneededacopyofthesettlementagreement;
t5 4) that he felt pressured to release the third check; payment vouchers and r6 5) that he was ostracized for giving Soldier copies of the
17 she was not aware of the z Defendant Lujan argued at trial that the parties had stipulated that 18 settlement ugr""-"rrt until after February 2001. However the stipulation signed by the t9 parties provides, ' ^rr," parties hereby submit this stipulation of undisputed Facts, as follows: 20 ... a settlement 17.ByFebruary 2001, Defendant Davina M. Lujan had learned of 2l reached with Dr. BatoYan. 22 this stipulated fact Stip. atfll7. Contr ary toDefendant Lujan's argument the court finds that does not limit testimorry o, a finding that she wuN aware of the settlement prior to February 23 2001. 24 3 See fir 2. 25 Page 3 of 19 1 checks for the first and second payments to Dr. Batoyan;
2 6) that after Soldier received the copies, Soldier was assigned to write grants without
J a desk, computer or grant writing software;
4 7) thatDefendant Lujan was at times an irresponsible hospital administrator,
5 spending more money than the hospital collected.
6 c) The court finds the following facts asserted by Patrick Mason to be credible and true:
7 l) that between October of 1999 and2002 he was the Assistant Attomey General 8 responsible for reviewing all government claims filed against the Government of
9 Guam;
10 2) thatduring the above time period he did not review a claim filed by Vivien
11 Batoyan.
t2 d) The court finds the following facts asserted by Robert A. Soldier to be credible and
13 true:
t4 1) that GMH's rules and regulations required that the risk manager be made aware of
15 any and all claims against the hospital;4
l6 2) thatRobert Soldier was GMH's risk manager prior to the time the first two
t7 $100,000.00 payments to Dr. Batoyan were made up until January I l, 2001, when
18 his job duties were temporarily changed to grant writing;
19 3) that Mr. Soldier resumed his fulI duties as GMH risk manager on June 22,2001;
20 4) that Mr. Soldier was not aware of any claim that had been filed by Vivien
2l Batoyan, as described in $6101 et. seq. of the Government claims Act;
23 4 In addition to the court's finding of credibility this finding of fact is supported by the 24 Hospital's regulations presented to the court in Exhibit 82 on page328-32 of the numbered record exhibits introduced into evidence. 25 Page4of 19 Batoyan without his 1 5) that the first two payments of $100,000.00 where made to Dr'
2 knowledge; Therese Hart that the a J 6) that in December of 2000 he informed Defendant Lujan and govenrment claim 4 first two payments had been made to Dr. Batoyan without a
5 having been filed or a settlement agreement signed'
e) The court finds the following fact asserted by Aniceto Infante to be credible and true: 6
7 1) that he was emPloYed at GMH;
8 2) thathe was one of two people responsible for issuing GMH's checks; payment voucher; 9 3) that prior to issuing a check he was required to receive a
10 4) thatprior to issuing the checks to Dr. Batoyan he received such a voucher; was in a 11 5) that the Batoyan checks were prepared manually because the Govemor
12 hurry to issue them;
13 6) that all three of the checks issued to Dr. Batoyan were affixed with the Defendant l4 Gutierrez' s stamPed signature. that he 15 f1 Specifically, the court finds that Defendant Gutierrez truthfully asserted settled; and I6 approved the Batoyan settlement amount; directed that the matter be also authorized t7 directed his subordinates to settle for $300,000.00. This defendant the Release and 18 use of his signature on all payroll and vendor checks, and signed and ratified the two t9 Settlement Agreernent (Exhibit 47) thatauthorized final payment
20 earlier payments of the settlement. as well as 2I However the court finds that the general testimony of Defendant Gutierez,
the majority of his specific factual assertions were untrue, not credible, unreasonable 22
25 Page 5 of 19 the following assertions which were I and internally inconsistent.s The court finds and not credible: 2 made by Defendant Gutierrez to be untrue payments a J l) that Defendant Gutierrez was not aware of the first two $100'000'00 4 which were made to Dr' BatoYan;
5 2)thatDefendantGutierrezashospitaladministratordidnotdirectthatthefirsttwo
$100,000.00 payments be made to Dr' Batoyan; 6
7 3)thatDefendantGutierrezdidnotknowwhythecheckswentout; Gutierrez's knowledge or 8 4) that somebody made the checks without Defendant
9 authorization; the checks he would have ke'pt them 10 5) that if Defendant Gutierrez had known about been signed; 11 from going out until a settlement agreement had determined the $300'000'00 I2 6) that Defendant Gutierrez did not know who
13 settlement amount; had been issued to Dr' t4 7) thatDefendant Gutierrez did not know that the checks signed or a claim being filed; 15 Batoyan without a settlement agreement being during the period between his signing t6 8) that Defendant Gutierrez was not aware that and when Dr' Lujan was appointed T7 an emergency order (taking over the hospital),
as GMH',s hospital administrator, that he was GMH's hospital administrator' with 18 hospital, including the emergency t9 the ultimate authority to expend the funds of the
20 funds transferred to it by his order' Defendant Lujan to be untrue and not 2l g) .fhe court finds the following facts asserted by
23 upon the court's observations of witness s The court's finding of credibility were based 24 demeanor, responsiieness and character while testiffing, as well as the reasonableness and internal consistency of their factual assertions' 25 Page 6 of 19 I credible: payments to Dr' Batoyan 2 1) that Defendant Lujan was not aware that the first two and without a a J had been made without a government claim having been filed
4 signed settlement agreement;
5 2) thatprior to her signing the $300,000.00 settlement agreement with Dr. Batoyan, she was not aware that a government claim had not been filed' 6 and true: 7 h) The court finds the following facts asserted by Robert Kono to be credible
8 l) that he did not approve the Batoyan settlement for content and only reviewed it as 9 to form.
11 In this case Plaintiffs complaint, on its face, contains four causes of action: l) thatpayments to Dr' 12 Defendants violated Section 7102 of Title 5 of the Guam Code; 2)
Batoyan were made without any legal authorization 3) that Defendants violated GMH's 13
a claim form; and 4) that t4 standard operating procedures by not requiring Dr. Batoyan to file receive the 15 Defendants violated Section 6206 of Title 5 of the Guam Code by failingto
16 approval of the GMH Claims Officer. Compl. at 5 andT '6
17 I. First Cause of Action: Section 7102 18 alleged causes t9 6 In prior orders this court explained that Plaintiffs complaint contained three of action. Attorney General iTCuo*v. Carl T.C. Gutierrez, Civil Case no 0166-03' Decision and Order on Motion for Summary Judgment, at 2 (April 9,2009); Attomey 20 Decision and order on General of Guam v. carl T.C. Gutierrez, civilcase no 0166-03, 2l Motion for Judgment on the Pleadings at2 (April g,2oo9). Upon a closer review of plaintiff s complaint the court finds that this delineation of Plaintiffs listed causes of action 22 contains a cause of was clearly eroneous. Paragraph number 20 on page 5 of the complaint in 23 action which arises out of Siction 7103 of Title 5 of the Guam Code;identified of the Complaint. Therefore, having so found, the court, pursuant to -ma-lde,has 3 and 5 paragraphs 24 included four of action in this analysis. People of Guam v. Hualde, 1999 "urrri, Guam 3, fl13 (SuP Ct. Guam 1999). 25 PageT of 19 I plaintiffls first cause of action arises out of the mandates of Section 7102 of Title 5 of
2 the Guam Code. It provides,
3 Any officer, agent, contractor, or ernployee of the Executive Branch of the government'oic,ru- who is charged with or assumes responsibility for the 4 certification of availability of fundsor the spending of money belonging !o the territory of Guam, including the Governor and Lt. Governor of Guam, stands in a 5 fiduciary relationship to the people of Guam in regard to the manageme'nt of public money. Any such oifi.o, agen! contractor, or ernployee of the Executive Branch 6 shall discharge theirduties withrespectto themanagement ofpublicmoneysolely 7 in the interest of the people of the territory of Guam. Any such offic9r, agent, contractor, or employee shall discharge his duties with the care, skill, prudence and 8 diligence under tle circumstances then prevailing that a prudent person acting in tkJcapacity and familiar with such matters would use in the conduct of an 9 enterprise of like character and with like aims.
5 Guam Code Ann. g7102 (2008). This section first requires that the evidence show that: 10 1)
11 Defendants were officers or employees of the Executive Branch of the govemment of Guam
T2 and2)that Defendants were charged with or assumed the responsibility of spending money 13 belonging to the Teritory of Guam. t4 The section on its face includes the Govemor of Guam. The Plaintiffintroduced
15 credible testimony and exhibit evidence to show that Defendant Gutierrez was the Govemor
T6 of Guam and the Hospital Administrator during the time period the first two payments were t7 issued to Dr. Batoyan. It also introduced credible testimony and exhibit evidence: 1) that
18 Defendant Gutierrez, as Governor and or Hospital Administrator, directed Therese Hart to
r9 pay Dr. Batoyan $300,000.00, before a govemment claim was filed or a settlement
20 agreement signed; 2) thatin his offrces Defendant Gutierrez had the responsibility to expend
2l hospital funds; 3) that during his tenure as acting GMH Hospital Administrator, pursuant to 22 his instruction, Dr. Batoyan was paid $200,000.00; 4) that as to the final $100'000.00
23 payment Defendant Gutierrez assumed the responsibility of signing the settle'ment
24 agreement; that had the governor not signed the settlement agreement the final $100,000.00
25 Page 8 of 19 I payment would not have been issued; 5) that when Defendant Gutierrez approved the
2 settlement agreernent it was an assumption of responsibility for the spending of money a J belonging to the Territory of Guam.
4 These findings are supported by the court's above findings of fact as well as exhibit: B-
5 G and Exhibit 47 (Release and Settlement Agreement). Plaintiffintroduced credible and
6 true testimony that: 1) Defendant Lujan was the GMH Hospital Administrator prior to the
issuance of the third settlement check, 2) that she was aware that no government claim had 7
8 been filed; 3) that as Hospital Administrator she was responsible for spending GMH's
9 money; 4) thatshe signed the settlement agreement on behalf of GMH as Hospital
10 Administrator walranting that she "is duly authorized and empowered to execute the
11 Agreernent;"and 5) that she directed that the final payment be made. 8x.47 atfl10'
12 GMH was first designated as an autonomous corporation by the Guam Health Act of
l3 1977. T\atAct designates Guam as a public corporation and autonomous instrumentality of
t4 the govemment of Guam. 10 Guam Code Ann. $30103 (2003). However, as explained by
15 the 9th Circuit in 1980 in Baldwin, the Board is not completely autonomous and is subject to
t6 the Executive Branch. Bordallo v. Baldwin,624F.2d932 (gthCir. l9S0)(the ninth circuit
l7 found that in the 1977 Health Act the legislature had inorganically interfered with the
18 Governor's organic duties). Section L42lg(a) of the Organic Act plainly mandates that, ". . .
t9 the Governor shall establish, maintain, and operate public health services in Guam,
20 including hospitals . . ." 48 U.S.C. $l42lg(a) (2000). In this case, evidence of executive
2T branch control over GMH was indicated by Defendant Gutierrez's Executive Orders
22 assuming control of GMH. Exhibits B-G - H-G. Each of these seven orders asserts the
23 Governor's control over GMH by citing the Governor of Guam's Organic Act authority.Id.
25 Page 9 of 19 1 all.7 exempt'8 Section The funds generated or provided to GMH are public' They are tax 2 provided to g0r 12 provides that GMH,s self-generated funds shall commingred with money J through the rrtthis case, evidence was introduced 4 it from the General Fund. /d. at $g01 lz. Exhibits' that testimony of Defendant Gutierrez, Mr' Pangelinan' and Defendant Gutierrez's 5 to GMH' ExhibitB-G at 2' Althouglr no direct provided 6 Guam,s General Fund monies were of the money was from GMH's self-generated 7 testimony established whether the source from the funds, it was undisputed the monies were drawn 8 funds or the government's general
9 hospital's funds.e 1) or employees of the Executive Branch: 10 section 7102 nextrequires that officers ..dischargetheirdutieswithrespecttothemanagementofpublicmoneysolelyintheinterest 11
12 ofthepeopleofGuam;,,and2)..dischargehisdutieswiththecare,skill,prudenceand that a prudent person acting in like prevailing 13 diligence under the circumstances then of like would use in the conduct of an enterprise l4 capacity and familiar with such matters
15 fall 7 The court finds it important to note ir,4?|]:*ative thatwhether GMH's activitiesand is 16 oi'sections 7102 and7l03 was not raised by the Defendants' outside of the scope
t7 hereby waived.
8 18 Section 80110 Provides, AsaninstrumentalityoftheTerritory,thehospitalandallpropertyacquiredby 19 orforthehospital,andall,".,",,,'"s-uodincometherefromareexemptfrom political subdivision or public corporation taxation by the Territory or by any I
20 thereof and from all taxes impor"d *d"' the authority of the Legislature of the 2L Territory,orwithrespecttowhichtheLegislatureisauthorizedtogrant exernPtion. 22
23 $s01 1o (1ee6). any argument at that Defendants' failure to raise 24 e Like footnote number T,thecourt finds acts as a waiver' trial regarding the source of the funds' 25 Page 10 of 19 below the code Ann' $7102 (200s)' As set forth 1 character and with like aims." 5 Guam to prudently manage public money' 2 court finds that Defendants failed a J people was not solely in the interest of the 4 Specifically the court finds the expenditure of a similarly the care, skill, prudence and diligence' 5 of Guam and was not authorized with Batoyan be paid the should not have both directed Dr' 6 situated prudent person. Defendants act claim having 1) absent a government claim's 7 third $100,000.00 settlement payment: having found been filed and2)in the face of the hospital's adminisfrative appeals board 8
9 priortoanypaymentsbeingmadethatthehospitalboardoftrustees'decisiontosuspendDr. or capricious' Batoyan's privileges was supported by the evidence and was not arbitrary 10 paid $300'000'00: 1) Defendant Gutierrez should not have directed that Dr' Batoyan be 11 Risk Manager; 2) without having notified the GMH 12 absent a signed settlement agreement
13 and3)inthefaceofthehospitaladministrativeboard'sdecision. inherent sovereign immunity protects it, as a sovereign' from suit without its t4 Guam,s Guam 10, fl33 (Guam Sup' ct' 2007) citing' 15 consent. Limtiaco v. Guam Fire Dept.,2007 cir'1989)' Absent some specific T6 Marxv. Government of Guatn,866F.2d2g4,2g8(9th acts as jurisdictional bar on all actions t7 legislative waiver Guam's sovereign immunity an Executive fact, atthe outset the court finds that 18 brouglrt against it. .Id. Given this legal public funds to settle a potential cause of action 19 Branch official or employee, who uses has waived against the govemment of Guam, without some showing that the legislature 20 and outside of the sole interest of Guam's immunity for that action, does so imprudently I
2l 22 citizens. the no evidence that prior to authorizing 23 Defendant Gutierrez in this case presented
24 expenditureofGMHfundsheraisedordiscussedthesubjectofGuam'sgovernme,lrtal
25 Page 11 of 19 asserted that they I immunity; that it was considered or briefed. Defendants in their testimony be made' However 2 relied upon the advice of legal counsel prior to directing that payment and why their reliance they failed to assert or introduce any evidence of what was discussed a J that Defendants 4 upon that advice was either reasonable or prudent. Absent some showing action were not barred 5 were aware of and considered how Dr. Batoyan's potential causes of with 5 GCA 6 by Guam's sovereign immunity the court is unable to find they complied
7 $7102.'o
Guam,s Government Claims Act located in Chapter 6 of Title 5 of the Guam Code 8
and specifically GMH' 9 applies to all causes of action brought against the Territory of Guam Claims Act 10 5 Guam Code Ann. $ 6102 (2003). The court finds that the Government the act, be filed' 5 11 requires that prior to any waiver of immunity, a claim, as delineated by
12 Guam Code Ann. $$ 61060), 6108 (2008).
13 In order to determine whether a statute is ambiguous, the court examines the i*guugr of the statute and the structure of the law as a whole including its object T4 *dpoll"y. The inquiry into whether a statute is ambiguous begins with looking at the plain meaniitg ff the language in question, and, when looking at the 15 language, the court's iask is to determine ifthe language is plain gnd ulambiguous' .Th-e p6inness or ambiguity of statutory language_is determined byreference to the r6 broader language itself, the speJific context in which that language is used, andttre other T7 corite*t of the statuie as a whole.' A statute's context includes looking at provisions of the same statute and other related statutes. 18 People v. Lau,2007 Guam 4n A (Guam Sup. Ct.Terr.2007), quoting, Aguon v' Gutierrez, t9 claims Act 2002 Guam 14li6 (Guam Sup. Ct. 2002). Section 6108 of the Govemment 20 provides, 2l 22 advice excused t0 Because Defenrlants affirmatively asserted that their reliance upon legal or 23 their imprudence, it was their burden to show that these issues were inquired about Defendants are discussed. Especially under the facts of this case, having opened the door satisfied 24 not allowed to rest ,rpo1 u blank assertion of having obtained legal advice and being with it. 25 Pagel2of 19 I This Chapter shall apply to all pending litigation in the courts of Guam, or which are on appeal, which were commenced without first filing an 2 administrative claim as would be required by this Chapter had it applied at the a time the suit was filed. If such pending litigation was timely filed under the J laws existing at the time of filing, the plaintiffs may, notwithstanding $ 6106 of this Chapter, file a claim under this Chapter, but such claims shall not be filed 4 later than June 30, l984,or not later than six months after the effective date of 5 this Chapter, whichever is later.
6 5 Guam Code Ann. $ 6108 (2008).
7 Section 6106(b) of the same act provides,
8 (b) Every action filed under this Chapter shall be barred unless commenced within 18 months from the time the notice that the claim was rejected was 9 served as provided in Article 2 of this Chapter, or within 24 months after the claim was filed in cases where the government does not reject the claim. 10 Id. at $ 6106(b). l1 When taking into account Guam's sovereign immunity and the Act's limited waiver of it, as t2 authorized by the Organic Act, the meaning, scope and intent of these statues is not 13 ambiguous. 48 U.S.C.A $ 1421a (2008). They clariff that the Act's waiver of immunity I4 does not apply to a claimant who has not filed a government claim. 15 ln addition to the court's finding above, it specifically finds that Defendants' t6 payment of public funds to Dr. Batoyan, absent some discussion or consideration of her 17 failure to file a Government Claim as defined by section 6103 of the Act, was not skillful, 18 prudent, or diligent as analyzed from a similarly situated reasonable person standard. In this l9 case specifically, GMH's actions had been administratively afErmed and no claim had been 20 filed to begin the process of GMH's waiver of immunity. Given these facts and the lack of 2l any justifiable reason to the contrary discussing immunity, it is outside the realm of reason 22 to expend public money on a cause of action not yet actionable. 23
24 II. Second Cause of Action: Section 71,03 25 Page 13 of 19 I PlaintifPs second cause of action is found in paragraph 20 of its complaint. It
2 alleges that the first two $100,000.00, payments made to Dr. Batoyan, "were made wholly
J without legal authonzationinasmuch as no claim, within the meaning of the Government
4 Claims Act, had been filed by Defendant Batoyan against GMHA, nor had any other legal
5 procedure which might avail Defendant Batoyan of monetary relief from GMHA been
6 initiated byher." Compl. at 5. Likewise, Section 7103 of Title 5 of the Guam Code
7 provides,
8 Any taxpayer who is a resident of Guam shall have standing to sue the government of Guam and any officer, agent, contractor, or employee of the 9 Executive Branch of the govemment of Guam for the purpose of enjoining any officer, agent, contractor, or employee of the Executive Branch of the 10 government of Guam from expending money without proper appropriation, without proper authority, illegally, or contrary to law, and to obtain a personal 11 judgment in the courts of Guam against such officers, agents, contractors, or t2 ernployees ofthe govemment ofGuam and in favor ofthe Government of Guam for the return to the Government of Guam of any money which has been l3 expended without proper appropriation, without proper authority, illegally, or contrary to law. For purposes of this Chapter, the Governor and Lt. Governor T4 of Guam are officers of the government of Guam, and are included within the scope of this Chapter. 15 5 GCA $ 7103 (2003). As in the discussion of Section7l02, Plaintiffs allege Defendant t6 Gutierrez's payments to Dr. Batoyan were without proper authority. To be held liable under t7 the statute Plaintiff must prove by a preponderance of the evidence that Defendant was: 1) 18 an officer of the Executive Branch; 2)that expended money; 3) without: a)proper t9 appropriation; b) proper authority; c) illegally; or d) contrary to law. 20 A review of the court's findings of fact establish Defendant Gutierrez was Governor 2I of Guam and acting Hospital Administrator when Dr. Balon was issued two GMH checks 22 for $100,000.00 each. As identified by the Organic Act, the Governor of Guam is an 23 executive officer of the executive branch of Guam. 48 U.S.C. 51422 (2008). Furthermore as 24
25 Page 14 of 19 I GMH Hospital Administrator, Defendant Gutierrez was either an agent or officer of the
2 executive branch of Guam; within the scope of 7103. As explained above, GMH is a 5 ultimately subject, in existence and control, to the organic powers of executive branch. 48
4 U.S.C. g1a2lg(a) (2008). As such, its employees, officers and agents fall within the scope
5 of Section 7102 and7l03, as employees officers and agents of the executive branch.
6 Plaintiffpresented direct and circumstantial evidence to support this finding: the testimony
7 of Defendant Gutierrez, Therese Hart, Mr. Pangelinan and Exhibit B-G.
8 Defendant Gutierrez's expenditure of the two $100,000.00 payments to Dr. Batoyan
9 was proven by the credible testimony of Therese Hart. His expenditure was confrary to the
10 final disjunctive proscriptions of Section 7103 (contrary to law). The expenditures, without
l1 authority, abrogated Guam's sovereign immunity which under the Organic Act is
t2 specifically and uniquely a legislative function.
13 As explained above Guam's inherent sovereign immunityprotects it, from suit
t4 without its consent. Limtiaco v. Guam Fire Dept.,2007 Guam 10, tT33 (Guam Sup. Ct.
l5 2007) citing, Marx v. Government of Guam, 866 F .2d 294, 298 (9th Cir. t 989). The organic
I6 act specifically ties Guam's immunity against suit to legislative consent. Absent some
t7 specific legislative waiver, Guam's sovereign immunity acts as a jurisdictional bar on all
18 actions brought against it. Id. As to the facts asserted in this case, the court at the outset
I9 finds that the Defendants used public funds to settle a potential cause of action against the
20 govemment of Guam. They did so without a legislative waiver of immunity, without proper
21 authority, illegally, or contrary to law.
22 Defendant Gutierrez in this case argues that Guam's Government Claims Act, found
23 in Chapter 6 of Title 5 of the Government Code, waives Guam's immunity in actions in tort
24 and authorizes any administrative ofEcial to use public funds to settle potential claims of
25 govemmental liability. The court is unpersuaded by this argument and finds such an
Page 15 of 19 I interpretation of chapter 6 to be without support and contrary to the plain language and clear
2 intention of the statute.
J Guam's Government Claims Act applies to all causes of action brought against the
4 Territory of Guam and specifically GMH. 5 Guam Code Ann. $ 6102 (2008). Furthermore,
5 the Government Claims Act requires that a claim be filed prior to anywaiver of immunity. 5
6 Guam Code Ann. $$ 61060),6108 (2003). Section 6108 of the Govemment Claims Act
7 provides,
8 This Chapter shall apply to all pending litigation in the courts of Guam, or which are on appeal, which were commenced without first filing an 9 administrative claim as would be required by this Chapter had it applied at the time the suit was filed. If such pending litigation was timely filed under the laws l0 existing at the time of filing, the plaintifls may, notwithstanding $ 6106 of this Chapter, file a claim under this Chapter, but such claims shall not be filed later 11 than June 30, 1984, or not later than six months after the eflective date of this l2 Chapter, whichever is later.
13 5 Guam Code Ann. $ 6108 (2008).
t4 Section 6106(b) of the same act provides,
l5 O) Every action filed under this Chapter shall be barred unless commenced within 18 months from the time the notice that the claim was rejected was 16 served as provided in Article 2 of this Chapter, or within 24 months after the claim was filed in cases where the government does not reject the claim. T7 Id. at $ 6106(b). l8 When taking into account Guam's sovereign immunity and the Claims Act's limited waiver t9 of it, the meaning, scope and intent of these statues is not ambiguous. 48 U.S.C.A $ 1421a 20 (2003). They clarifr that the Act's waiver of immunity does not apply to a claimant who has 2T not filed a govemment claim just as it would retroactively apply one who had not filed a 22 claim but whose law suit was pending. 5 Guam Code Ann. $6108. 23 At the time the above payments were made, Section 6206 provided 24 (a) The Affomey General, subject to the approval of the Govemor for 25 settlements of over $3,000.00 may settle for money damages any claim against
Page 16 of 19 I a€ency or autonomous agency under this 1 1il" Chapter. (b) In the case of autonomour ig"rrli"s 2 the claims officer, subject to the approval of the Board, theAttorney General and the cou.-or, or if there be no board, the highest official of such agency, J the Auomey General and the Governor for settlements of over $:,oo"o.oo, may settle ro, --- -on"y -' damages 4 any claim filed against said agency under ttris cirapter
5 5 Guam Code Ann. $6206 (2000).
6 In addition the Supreme court has repeatedly found that when interpreting a legislative act 7 and the statute, " ' ' ' includes particular language in one section of a stafute but omits it in 8 another section of the same Act, it is generallypresumed that congress acts intentionally and 9 purposelyinthedisparateinclusionorexcrusion.,, Deanv. (r.s.,r29 s.ct. 1g49, lg54 10 (200e).
ll section 6206 identifies specifically those people authorized to settle a suit against the l2 govemment of Guam once a claim has been filed. 5 Guam code Ann. $6206 (200g). They I3 are the Attorney General or the claims of,Ecer of an autonomous agency. Id. Theclaims t4 Act's limited waiver of immunity is plainly subject to two requirements prior to any 15 authorized settlement: 1) the filing of a govemment claim and 2)the authority to settle a r6 claim; is specifically limited to two persons. Absent these conditions being met, t7 governmental immunity has not been waived and a payment of Govemment funds, to settle l8 a claim, not authorized.
t9 h this case the Plaintiffpresented credible evidence that a claim was never filed and
20 that the settlernent payments were directed and authorized by someone other than those
2l identified by Section 6206. Furthermore, they were not approved by acting Attorney
22 General Kono' Defendants have failed to assert or evince any evidence that a claims ofgcer 23 for GMH was ever appointed or designated for GMH. Absent such the onlyperson 24 authorized to direct approval of a settlernent payment is the Attomey General of Guam. In 25 this case the amount of the payment decided upon and directed by Defendant Gutierrez, was
PagelT of l9 1 without legislative authority and contrary to the provisions of the organic Act of Guam. 2 III. Third Cause of Action J Plaintiffs third cause of action arises out of Paragraph 25 of its complaint. compl. 4 At 6. It provides, 5 GMHA standard operatingprocedures . . . mandates that a claim be submitted p:jo., to an_ypaymgnt of govemment funds to 6 a claimant, and that the GMHA Claims officer review said claim. In this or, information and belie{, Dr. Batoyan never provided or filed a claim, "u.", or initiated any legal u.iion-uguirrrt 7 c\tft{justiftingthepaymentofthe$:oo,ooo.oo. eaaitionaiy,onirrto-rrriation and belief, GMHA's claim officer did not.erri"* 8 no, approve the settlement of the claim, as required by law. As a resurt, on information uoi ulri"e 9 Defendants G}Ji9-1e2, Lujan . . . never received no required the requisite claim form, and no GMHA craims ofEcer rwiewed the propriety of the $300,000.00 t0 payment by GMHA, in violation of GMHA stand^ard'operating procedure and Guam Law. ll t2 'Id' outside of the proscriptions of the Guam's Government claims Act and Guam,s sovereign immunity, Plaintiffintroduced no l3 evidence that GMH,s standard operating procedure required that aGMH claims officer l4 review all claims prior to settlement. Absent any evidence the court is unable to analyzeor 15 review the merits of this allegation. plaintifips third cause of action is therefore dismissed. I6 IV. Fourth Cause of Action t7 PlaintifiPs fourth cause of action asserts that, r8 "[o]n information and belief, prior to Defendants Gutierrez t9 [and] Lujan . . . ratifring and authorizing the $300,000.00 payment to Dr' Batoyan, Defendants . . . violated the Government 20 claims Act by failing to receive the approval of the GMHA claims officer (5 G.c.A 2l $ 6206 (b) . . ], compl.at 7. Strictly construed, the plain language of Section 6206 22 of the Government claims Act did not require the GMH hospital administrator or Governor 23 of Guam to obtain the,.approval of the claims officer" 5 Guam code Ann. $6206(b);1d. Rather 24 the claims ofiEcer of an autonomous agency was required to obtain the approval 25 of the Board, Attorney General, and the
Page 18 of t9 I Govemor, prior to settlement. Id.; Dean v. (I.s.,l29 s.ct. l g4g, l g54 (200g)(when a statute 2 includes particular language in one section but omits it in another it is generally presumed J that the legislature acts intentionally and purposely in the disparate inclusion or exclusion). 4 Plaintiffs fourth cause of action is therefore dismissed. 6 For the above reasons and pursuant to the mandates of Sections 7102 and7103 of the 7 Guam code' PlaintifPs are entitled to a personal judgment against Defendant Gutierrez for 8 $300,000'00 and Defendant Lujan for $100,000.00, for a total judgment of $300,000.00 to 9 be paid to the Government Guam as of the date of this order. Defendant Lujan and l0 Defendant Gutierrez are jointly and severally liable for $100,000.00 of the $300,000.00 lt judgment' PlaintifPs shall prepare and file ajudgment, which has been approved as to form t2 by Defendants, within the next 14 davs.
l3 l4 SO ORDERED, this June Lt'( I ^ ,2009. l5 t6 t7 Judge Pro Tempore, Superior Court of Guam l8 r9
20 Ittr$Ltrt#ilt$*ilrH orElnrl on nh h n ofilia tlr. rl dddh| l|'itrCosrolOrtr. 2l g|.|i. l}|t(t n }||ri|r.
22 JUN 0 4 zuuE
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