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4 BY= Y : ~ 'l||1bl1l4-
IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 5
6 EAGLE EAGLE LAND LAND HOLDINGS, LLC, Civil Case No. CV0242-24 CV0242-24 7 Plaintiff; Plaintiff, 8 DECISION AND ORDER RE:
RE:
vs. GOVERNMENTAL IMMUNITY 9 SCIENCE IS FUN AND AWESOME 10 10 LEARNING LEAM'ING ACADEMY ACADEMY CHARTER 11 SCHOOL,
12 Defendant.
13
14 This matter came before This matter the Honorable beforethe HonorableJonathan Jonathan R.
R. Quam onJuly Quan on July31, 3 l ,2024, 2024,for foran anevidcntiary evidentiary
15 hearing on Defendant Defendant Science ScienceisisFun Funand andAwesome AwesomeLearning LearningAcademy AcademyCharter CharterSchool's School's("SIFA")
("SIFA")
16 governmental immunity defense.
governmental immunity defense. At At the the hearing, Attorney Michael F.
F. Phillies Phillipsappeared appeared on behalf of of
17 SIFA, and and Attorney Attorney Jon R. Ramos appearedon Ramos appeared onbehalf behalfof of Plaintiff Plaintiff Eagle Eagle Land Land Holdings, Holdings, LLC.
LLC.
18 Having Having duly duly considered considered the parties' written written and and oral oral arguments, arguments, the relevant relevant statutory statutory frameworks, frameworks, 19 and the witness testimony presented, the Court presented, the Court concludes concludes that that SIF SIFA does does not enjoy governmental governmental 20 immunity immunitybecause because it is is not not part of of the the Government of Guam.
Guam.
21
22
23 BaCKGROUND BACKGROUND
24 Eagle Land Holdings Holdings is is aa legal legal liability liability company companyorganized organized in inGuam Guam and and the owner of certain 25 real real property inBarrigada, property in Barrigada,Guam.
Guam.V.
V.Comp!.
Con pl.atat1I(Apr.
(Apr. 25, 25, 2024).
2024). SIFA SIFAisisaa non-profit non-profit corporation corporation 26 organized in Guam, the operator of a public public charter charter school, school, and and the occupant of the aforementioned 27
28 11 ofll of11
I real property. OnApril property. Id On April25, 25,2024, 2024, Eagle Eagle Land Land Holdings Holdings filed filed aa Verified Verified Complaint Complaint for for Unlawful
2 Detainer, Ejectment, Trespass, Detainer, Ejectment, Trespass, and and Damages Damages ("Verified ("Verified Complaint")
Complaint") against against SIFA.
SIFA. Eagle Land Land
3 Holdings seeks to eject SIFA from the Barrigada property property and and to to recover recover $1,576,133.33 $I,576,l33.33 in in unpaid unpaid 4 rent accruing between betweenApril April I,1,2023 2023 and and February 29, 2024.
February 29, 2024. Id. at 5.
5 Eagle Land Holdings Holdings alleges alleges that that in in December December 2017, 2017, the the parties parties executed executed aa contract titled the 6 "Partnership "Partnership for Leaming Support Support in in Education Education Through Through Lease, Lease, Utilities, Utilities, Supplies, Supplies, and Services Services 7
8 Contract," also also known as the "PLEASE "PLEASE Contract."
Contract." Id.
ld atat 2.
2. The Theparties partiesagreed agreed that that Eagle Eagle Land Land
9 Holdings would serve as a vendor for the charter school's school's "operational needs," including providing
10 10 land for the land for the the school's school's campus.
campus. V. Compo., Ex. AA atat 1.l. The Compl., Ex. The PLEASE PLEASE Contract Contract commenced on 11 July 1, 1, 2018, and expired 2018, and expired on onJune June30, 30,2023.
2023.Id.
Id at 2.
12 After After the the PLEASE PLEASE Contract Contract expired, expired, SIFA SIF Aremained remained on on the the property property as as aa holdover holdover tenant.
tenant.
13 13 On February 7, 2024, February 7, 2024, Eagle Eagle Land Land Holdings Holdings gave gave written written notice that that it was terminating terminating the holdover 14 14 demanding SIFA vacate within thirty (30) days.
tenancy and demanding days. V. Compl., Con Ex. C.
Ex. C. Eagle Land Holdings Holdings 15 15
16 16 also demanded demandedarrears arrearspayments paymentsofofover overfour fourmillion million dollars ($4,000,000.00), ($4,000,000.00), including more more than
17 17 one million million dollars dollars ($l,000,000.00)
($1,000,000.00) for unpaid unpaid holdover holdover rent accruing after rent accruing after June June30, 30,2023.
2023. Id.
ld.
18 18 However, SIFA SIFA has has neither neither vacated the the property properly nor paid these theseamounts.
amounts. V.
V. Comp!.
Comal. at 4.
19 19 The Court held an Unlawful Unlawful Detainer Detainerhearing hearingon on July July 2, 2, 2024, 2024, but but that hearing hearing did did not not proceed proceed 20 as planned;
planned, instead, SJFA SIFA raised raised an an oral oral challenge challenge to to this this Court's Court's jurisdiction.
jurisdiction. SIFA SIFA asserted asserted that that it 21 is an entity entity within within the the Government Government of of Guam Guam and and isis therefore therefore entitled entitled to to claim claim governmental governmental 22 immunity. See See Min.
Min. Entry Entry at at 10:44:33 10:44:33 AM (July (July 2, 2024).
2024). SIFA SIFA argued argued that that because because Eagle Land 23
24 Holdings did not file a claim under the the Government Government Claims Act before bringing this lawsuit, S[FA's S[FA's
25 governmental immunity has governmental immunity has not not been been waived.
waived. The The Court Court ordered ordered SIFA SIF to to put put this this argument argument in 26 writing.
writing. On On .Idly July 9, 9, 2024, SIFA filed its its "Memorandum of of Points Points and and Authorities Authorities in in Support Support of of 27
28 2 ofll o 1 l Governmental Immunityand Governmental Immunity andthe theApplication Applicationofof the the Government GovernmentClaims ClaimsAct"
Act" ("SIFA ("SIF
2 Memorandum").
Memorandum"). There, There, SIFA SIFAreasserted reasserted its its claim claim of ofgovernmental governmental immunity immunity and and stated that"if stated that "if
3 [Eagle Land Holdings] continues continues to dispute SIFA's A's inclusion inclusion as as part part of of the the Government Government of Guam, 4 [SIFA] [SIF A]will willprovide providesufficient sufficientevidence evidenceat atthe the hearing hearing to establish establishthis thisfact."
fact." Id.
Id at at 2.
5 At the the hearing July 31, 2024, hearing on July 2024, SIF SIFA testimony from Evangeline M.
A elicited testimony M. Cepeda, the 6 Chairwoman Chairwoman of the the Guam Guam Academy Academy Charter Charter Schools Schools Council, about about the nature nature and and the funding 7
8 structure of Guam charter charter schools.
schools. After After the the hearing, hearing, the the Court Court took this matter under advisement.
advisement.
9
10 10 DISCUSSION DISCUSSION 11 SIFA SJF A argues, argues, in short, short, that that this this lawsuit lawsuit should should be bedismissed dismissed because because SIFA enjoys enJoys 12 12 governmental governmental immunity from from suit, suit,and andthat thatits itsimmunity immunityhas hasnot notbeen beenwaived waivedhere herebecause because Eagle Eagle 13 Land Holdings did not first file file aa claim claimunder under the the Government Claims Act.
Government Claims Act. See See generally SIFA 14 14 Memorandum (Jul. 9, Memorandum (Jul. 9, 2024).
2024). ItItisiswe1l~established that the well~established that the Government Government of of Guam "enjoys "enjoys broad broad 15 15
16 sovereign immunity," Story-Bernardo sovereign immunity," St01y-Bernardo v.
v. Gov ofGuam, 2023 Guam 27 ,r1] 12, Gov 'r't of 12,and andthat that"in "in order order for
17 17 a suit suit to to be be maintained against the the Government Government of of Guamand any any of omits instrumentalities or its instrumentalities or agencies, agencies,
18 sovereign immunity immunity must must be expressly waived be expressly waived by by duly duly enacted enactedlegislation,"
legislation," Baulisia Bautista v.SanAgustin, 19 2015 23 ,r111818(emphasis Guam 23 2015 Guam (emphasisadded).
added).The TheGovernment GovernmentClaims ClaimsAct Act waives waives sovereign sovereign immunity immunity 20 only ifif the plaintiff plaintiff has has first first complied complied with with the the procedures procedures prescribed by the Act. See Guam Police Police 21 Dep 't'r v.
v. Superior Court Court (Lzg'an), Guam88,r118.1 (Lujan), 20111Guam 8. 1 IfSIF IflSIFA were part A were part of of the Government Government of Guam, 22
23
24 11 The The Court notes that the Guam Guam Legislature Legislature has has granted granted charter charter schools schoolsthethepower power to to "sue "sue and and be be sued sued in in [its]
[its]
own name." own name." 17 GCA §§ l2lOl(c)(8).
17 GCA 1210I(c)(8).A statutory A statutory "Sue "sueand andbebesued" clauseoperates sued"clause as a operates as waiver of a waiver of sovereign immunity sovereign immunity 25 separate from that separate from that provided provided by by the Government Government Claims Claims Act.
Act. See, e_g,,Bautista, See, e.g., Battista, 2015 2015 Guam Guam 23 ,r 28; Guam 23 '1128, Guam Econ.
Econ. Dev.
Dev.
Auth. Auth. v.
v. Island Equipment Co., 1998 Guam Guam 77 'l['lf W 8·9.8-9. Nonetheless, even when Nonetheless, even when thethewaiver waiver of of immunity immunity is provided by a 26 sue-and-be-sued clauserather sue•and•be•sued clause ratherthan than5 5GCA GCA§§6105(a), 6l05(a), Government GovernmentClaims ClaimsAct Act procedures apply, See stillapply.
proceduresstill Pare: v.
See Pere= v.
GHURA, GHURA, 2000 Guam Guam 33 33 'I11 f 11.I l. As As explained explained below, however, however, this issue issue isis effectively effectively moot because ultimately SIF because ultimately SIFA is 27 not an entity within within the the coverage coverage of the Government Government ClaimsClaims Act.
Act.
28 3 ofll of`l1 l it would therefore be be entitled entitled to to demand demand compliance compliance with with Government Government Claims Act Act procedures.
procedures. The
2 Court is is not not convinced that SIFA is is a governmental governmental entity.
entity.
3
4 1. The The Government Claims Claims Act Defines "Government of Defines the "Government of Guam"
Guam"
5 The Gove ent Claims Government Claims Act Act defines defines the the "Government "Government of Guam"
Guam" as as "all "allagencies, agencies, 6 departments, instrumentalities, public departments, instrumentalities, public corporations, corporations, and and all all other other entities of the the government, government, no no 7
8 matter how designated, designated, and whether or not such agencies agenciesmay maysue sueor orbe besued suedinintheir theirown ownname."
name." 5
9 GCA §§ 6l03(a).
GCA 6103(a). While Whilethis thislanguage language isis broadly broadly inclusive, inclusive, it it is is not not unlimited.
unlimited. Under Under the rule of the rule of
10 statutory interpretation interpretation known known as as expressionuni units est exclusionalterius, us est alrerius, "if "ifan an option option isis expressed expressed in 11 a law, all other options not expressed were intentionally intentionally excluded." Rinehart v. Rinehart, 2000 12 14 ,r119.
Guam 14 This canon 9. This canon "has "has force force only only when when the items expressed are are members of of an 'associated 13 13 group or series/ series,' justifying justifying the the inference inference that that items items not not mentioned mentioned were were excluded excluded by by deliberate deliberate 14 14 choice, choice, not inadvertence." People Guam 4 ,r1 12 n.6 People v. Lau,2007 Guam n.6 (quoting (quotingBarnltari Barnhart v. Coal v. Peabody Coal 15 15
16 Co., 537 U.S.
U.S. 149, 149, 168 168 (2003)).
(2003)) The The Court Court draws draws that inference here and concludes concludes that that an entity is
17 within the within the Government Government of Guam Guam for purposes of the purposes of the Government GovernmentClaims ClaimsAct Act only only if if the entity is
18 18 properly properly classified classified as as an an (I)
(I)agency, agency, (2)
(2) department, (3) instrumentality, department, (3) instrumentality, (4)
(4) public public corporation, or
19 19 (5) (5) "other entity" of ofthe the government.
20
21 21 2. GACSA CSAisis Silent Silenton on the the Classification Classification of of Charter CharterSchools Schools 22 The Court first first looks to to the the Guam Guam Academy Charter Schools Act of 2009 ("GACSA"), the 23
24 enabling statute for for all all Guam Guam charter schools, schools, to to determine determine whether charter schools fall of fall into any of
25 the aforementioned aforementionedcategories.
categories.The TheCourt Courtexamines examinesGA GACSA CSA ininlight lightof ofthe theNinth Ninth Circuit's Circuit's decision
26 in Bordello Bordallo v.
v. Reyes, Reyes, 763 F.2d F.2d 1098 1098 (9th Cir. 1985), 1985), which the the Guam Guam Supreme Supreme Court has cited 27
28 ofll 4 of`11
I approvingly in Guam Econ. Dev. Auth.
Econ. Dev. Auth. v.
v. Island Equip.
Equip. Co., 1998 Guam77~~ 1998 Guam W 6-7.
6-7. In Bordello, Bordallo, the the
2 Ninth Ninth Circuit Circuit held held that that the the Guam Guam Visitors Bureau Bureau ("GVB")
("GVB") was not an "instrumentality"
"instrumentality" of the the
3 Government of Guam because GVB's enabling statute did because GVB's did not not explicitly explicitlydesignate designate ititas as such. See id See id.
4 at l1103.
103. By By contrast, contrast, the the enabling enabling statute statute for for other other governmental governmental entities, entities, such such as as the the Guam Guam 5 International Airport Authority, International Airport Authority, explicitly explicitly used used the term term "instrumentality."
"instrumentality." Bordello Borda/lo concluded that 6 "because the Legislature Legislature had had expressly designated designated four public public corporations corporations as as instrumentalities of instrumentalities of 7
8 the government, it it did did not not intend intend the same same characterization to apply to other public corporations, not
9 so designated."
designated." Id. The TheEordallo Bordallo decision decision therefore therefore suggests suggests that an entity's entity's intended intended governmental
10 10 status, status, if any, should be explicit explicit in in its its enabling enabling statute.
statute.
11 Applying that Applying that logic logic here, here, ififthe theGuam Guam Legislature Legislature had had intended intended for for charter charter schools schools to be be 12 considered "instrumentalities" (or considered "instrumentalities" (or "agencies,"
"agencies," etc.)
etc.) of of the Government Government of Guam, Guam, then then GACSA 13 13 should make make that that apparent.
apparent. GACSA, however, however, is effectively effectively silent silent on on this this issue.
issue. The words words 14 "agency," "instrumentality,"
"instrumentality," and and "corporation,"
"corporation," do do not not appear appear anywhere in the statute.
anywhere in statute. The word 15 15
16 16 "department" only appears reference to appears in reference to the the Guam GuamDepartment DepartmentofofEducation Education(''GDOE"), ("GDOE"), which is
17 indisputably indisputably aa governmental governmentalentity.
entity. GACSA, however, refers to however, refers to GDOE GDOE primarily to to show show the the
18 18 distinction, not not the the similarity, similarity,between between charter charter schools See, e.g., schools and GDOE. See, 17 GCA e.g., 17 GCA §§ 12107(g)
12l07(g)
19 19 ("An ("An Academy Academy Charter Charter School School shall shall be be exempt exempt from from [GDOE]
[GDOE]policies, policies,rules, rules,regulations, regulations, and and 20 collective collectivebargaining bargaining agreements.").
agreements."). Nothing Nothingin inthe the text text ofGACSA of GA CSAdemonstrates demonstratesthat that the Legislature 21 intended intended for charter charter schools schools to to be be viewed viewed as as agencies, agencies, departments, instrumentalities, or departments, instrumentalities, or public 22
23 corporations of the Government of oflGuam.
Guam.
24 That leaves only the the possibility possibility that that charter schools schools fall fall into the amorphous "other entity amorphous "other entity of of
25 the Government"
Government" category.
category. But But here here too, too, the Bordello Bordallo case indicates that case indicates that aa governmental governmental"entity"
"entity"
I
26 would be designated in in its enabling statute:
would be so designated statute:
27
28 Sofll l because because the the Legislature Legislature had had expressly designated four expressly designated four public corporations corporations as as instrumentalities instrumentalities of ofthe the government, government, it diddid not not intend intend the the same same characterization to 2 apply toto other other public public corporations, corporations, not not so so designated. Consequently, [GVB]
designated. Consequently, [GVB] was 3 not aa governmental entity entitysince sinceitithad hadnot notbeen been expressly expresslydesignated designated as as such.
such.
4 763 F.2d at l1103 103 (emphasis (emphasis added), added); see also Guam see also Guam Watenvorks Walenvorks Authority Authority v. Badger Badger Meter, Meter, Inc., Inc., 5 2022 892223 ** 66 (D. 2022 WL 892223 (D. Guam Guam Mar.
Mar.28, 28,2022)
2022) (noting (noting "[t]he "[t]he purposeful purposeful omission of of language language 6 stating that that GWA WA was 'within"
'within"and andaapart part"of"
'ofthe thegovernment government of ofGuam, Guam, alone, alone, seemingly seemingly indicates indicates 7 the Legislature's Legislatllre's intent intent to to remove remove GW GWA from the government A from governmentof of Guam.").
Guam."). As As above, above, nothing nothing in 8
9 GACSA explicitly explicitlydesignates designates charter schools as charter schools as being beingany any sort sort of of governmental governmental"entity,"
"entity," which
10 suggests the Legislature suggests the Legislature did did not not intend to confer confer that that status.
status. Cf CfGuam Guam Radio Radio Services, Inc., d/b/a Services, Inc., dlb/a
l11l KOKU-FM KOKU-FM Hit Hit Radio100 Radiof v.
v. GEDA, 2000 Guam GEDA, 2000 1 33 Guam l11[ 33 ("Had ("Had the the Legislature Legislature wanted wanted public public 12 corporations to be covered covered by by the the Sunshine SunshineAct Act itit would have expressly expressly included included them them in in the the Act, Act, 13 13 just as expressly included as the Legislature expressly includedthem themin in the theGovernment GovernmentClaims ClaimsAct.").
Act.").
14 14 This is is neither neither surprising surprising nor unreasonable, given that unreasonable, given that SIFA's relationship relationship with the the 15 Government Government of` Guam Guamisis not not permanent.
permanent. Under Under GA GACSA, CSA, each each charter charter school receives receives its its charter charter 16
17 only in only in six-year six-year increments.
increments. 17 17 GCA GCA§§121 l3(a). Moreover, 12113(a). Moreover,each eachcharter charter school school isis subject subject to to an an
18 annual review by the Guam annual review Academy Charter Guam Academy Council to determine whether Charter Schools Council the school's whether the
19 19 charter should charter shouldbe berevoked.
revoked. See id. Revocation of a charter-and Seeid. charter-and thus thus revocation revocation of of the school's 20 governmental imprimatur governmental imprimatur-can occur for for several several reasons, reasons, including including poor poor student student performance, performance, 21 economic non-viability, or aa failure economic non-viability, failure totomaintain maintaineducational educational accreditation.
accreditation. See See 17 GCA §§ 17 GCA 22 121 I lI4(a)(l)-(6).
4(a)( I The Therelationship relationshipbetween between an an individual individual charter charter school school and and the Government Government of 23
24 then, is (at Guam, then, (at least least potentially)
potentially) temporary and and tenuous.
tenuous. See Geheb and and Owens, Charter School
25 Funding Gap, 46 FORDHAM FORDHAMURB.
URB.LJ.
L,.I.72, 72,115 l 15(2019)
(2019)(noting (notingthat•• that " several several studies have documented
26 that charterschools that charter schools'struggle 'struggle to to amass the fiscal amass the Fiscaland andhuman humancapacity'
Capacity'totocomply comply with with federal and and 27
28 of 6 of`11 l state law.").
law."). Under Under these these circumstances, circumstances, the the Legislature Legislature rationally rationally could have decided not not to grant
2 any governmental ental status status to to charter charterschools.
schools. The Court Court is is therefore therefore disinclined disinclined to to supply supply charter charter
3 schools schools with with aa governmental status.
status.
4
5 3. Witness Testimony Testimonv Did Did Not Establish Establish SIFA is is Part of of the the Government 6 SIFA's SIFA 'sbriefing briefingasserted asserted that that it would provide provide "sufficient "sufficient evidence"
evidence" to to establish that SIFA establish that SIFA is 7
8 part of the part of the Government of Guam.
Government of Guam. SIFA SIFA Memorandum Memorandum at at 2.
2. AtAthe thehearing, hearing,the the Court Court received received
9 testimony from Ms.
testimony from Ms. Cepeda Cepeda of of the the Guam Guam Academy Academy Charter Charter Schools Schools Council.
Council. Ms. Cepeda's Cepeda's
10 10 testimony, however, did not convince the Court that that SIFA SIFA is part of the Government of Guam.
l11l Ms. Cepeda's Cepeda 's testimony testimony primary focused focused on SIFA's A's funding structure.
structure. She She testified, testified, for 12 12 example, that that SIFA SIFA is is funded funded by by an an annual annual appropriation appropriation from from the the Guam Guam Legislature Legislature in in the the amount amount 13 0f$7,500.00 of $7,500.00 per student, Min.
per student, Min. Entry at 10:37:00 AM (Jul. 31, 2024), 10:3 7:00 AM and that ); and that"I "I00%"
00%" of ofthe the money money 14 SIFA receives comesfrom receives comes from governmental governmentalsources, sources,id.idatat 10:47:
10:47:10 AM. While IO AM. While this this evidence evidence certainly 15 15
16 establishes that that SIF SIFA is funded fzmded by the Government oflGuam, Guam, that fact does not not prove prove that that SIF SIFA is is an
17 entity within withinthe the Government Government of of Guam. See University of See University ofthe the Incarnate IncarnateWord v. Rectus, Wordv. Redus, 602 S.W.3d
18 18 398, 407 (Tex.
(Tex. 2020)
2020) ("engaging ("engaging in an act that serves a public purpose says nothing about the nature 19 of the entity itself."), itself.");Jackson Jackson v.
v. New New Center Community Mental Health Health Services, Services, 404 N.W.2d 688, 20 692 (Mich.
(Mich. Ct.
Ct. App.
App. 1987)
1987) ("[a]
("[a]private privateentity's entity'sperformance performance of ofaagovernmental governmental function function does does not not 21 confer governmental agency status on on that that entity.").
entity."). The mere mere fact fact that SIFA receives government 22 Funding doesnot funding does not establish establishitit as asaa governmental governmentalentity-otherwise, entity-otherwise, many many government government contractors contractors 23
24 could make a similar similar claim claim of being governmental entities.
entities. But But itit is is well-established well-established that that government
25 contractors are are typically typically not entitled to do so. See See Del Del Campo Campo v.
v. Kennedy, Kennedy, 517 F.3d F.3d 1070, 1070, 1076-81 1076-81
26
27
28 70fl1l of 11 l (9th Cir. 2008)
2008) (refusing (refusing to extend sovereign immunity to aa private immunity to private contractor contractor in in a suit related to the
2 contractor's partnership partnership with with a state stateDistrict District Attorney's Attorney's office).
3 Ms. Cepeda's Cepeda 'stestimony testimonyalso alsoestablished established that that once once aa charter charter school is is established, established, its its actions actions 4 must go through must go throughthe the"process "process of of government," including including transmitting transmitting invoices to the Department Department of of 5 Administration for payment. Min.
Min. Entry Entry at at 10:49:22 I AM (Jul. 31, 31, 2024).
2024). Additionally, Ms. Cepeda 6 testified that in her view, view, individual individual charter charter schools schools and Guam Academy Charter School School Council are 7
8 "one "one and and the same," id. at at 111l :09:09 AM, AM,although although she she later later testified testified that the the Council Council does does not not involve involve
9 itself in the the"day "day to today"
day" operations operationsofSIFA, oflSIFA, id.
id at I111:27:56 AM. Accordingly, :27:56 AM. Accordingly,Ms.
Ms.Cepeda Cepeda testified testified
10 that she understands understands SlF SIFAA to be a sub-department sub-department of of the the Guam Guam Academy Academy Charter Charter School School Council,
11 11 itself a"line which is itself "linedepartment"
department"under under the Guam Department the Guam Departmentof ofAdministration.
Administration.See Seeid at 1I I:l:l2:3 id at 12:31l 12 AM. However, AM. However,Ms.
Ms.Cepeda Cepedaalso alsoconceded conceded that no provision of` GACSA, or any other Guam of GA Guam law, 13 13 explicitly supports this view.
supports this view. Id.
Id. at at 11:15:13 11: 15: 13 AM, AM; ididatat1 11 1:27:11 :27: I I AM AM (noting (noting that that the the Guam Guam 14 Legislature needs to "clear "clear up" the issue). As As above, above, it is the Court's Court's position that nothing in GACSA 15 15
16 establishes charterschools establishes charter schoolsas aspart partof ofthe theGovernment Governmentof ofGuam.
Guam. Ms.
Ms. Cepeda's opinion opinion testimony on
17 the issue does not issue does not alter that that position.
18 In In short, short, while whilethe theCourt Courtappreciates appreciates Ms.
Ms.Cepeda's Cepeda's extensive extensive testimony, testimony, that that testimony testimony 19 merely establishes that SIF establishes that SIFA funded, and A is funded, and subject subjecttotooversight, oversight, by by the theGovernment Governmentof of Guam.
Guam. But 20 as noted noted in in the Jackson case cited cited above, above, this this does does not not suffice suffice to confer a governmental status:
21 Notwithstanding Notwithstanding its its performance performance of of a "governmental function" and and its its reliance reliance on 22 public funding, funding, New New Center Center retains retains its its identity identity as as aa nongovernmental nongovernmental entity. Its Its 23 employees. It employees are not county employees. it retains retains its its separate corporate identity separate corporate identity and is governed governed by its own own board board of ofdirectors.
directors. Except Except as it has voluntarily obligated obligated 24 itself itself by contract, contract, New Center Center is is not not required required to provide provide services or to remain services or remain in 25 existence. While itit may existence. While may have have been created created in in response response to to the the recognition recognition of mental mental health needs needs in Detroit, New Center's Center's creation was not mandated by law.
mandated by 26
27
28 8 of`11 of 11 1 404 N.W.2d N.W.2d at at 692-93.
692-93. The same true of same is true of SIFA. SIFA was was created created as as aa private private non-profit non-profit
2 corporation corporation and it remains so so today.
today. It has its its own own Board oflTrustees who who are are responsible responsiblefor for SS[FA's lF A's
3 day-to-day operations. See day-to-day operations. See Min.
Min. Entry Entry at I111:27:56 AM. While SIFA :27:56 AM. SIF A performs performs aa useful useful public public 4 function, it was not created by the Government of function, ofGuam Guam and and is is not not required required to remain in in existence.
5 Accordingly, the Accordingly, the Court Court is is not not persuaded that SIF persuaded that SIFAA is a governmental entity.
6
7 4. SIFA SIFA Was Was Not Not aa Governmental Governmental Entitv Entity in in December December 2017 8 The Court Court acknowledges acknowledges that that some some other other jurisdictions have have found found that that charter charter schools are 9 considered governmental entities, entities, at at least See, e.g., least in some contexts. See, e.g., El El Paso PasoEducation Education Initiative, Initiative, 10 10 Inc. v, Inc. v. Amex Properties, Properties, LLC, 602 Sw.3d SW.3d 521, 521, 529-30 529-30 (Tex.
(Tex. 2020)
2020) ("W e conclude ("We conclude that that openopen -
11
12 12 enrollment charterschools enrollment charter arm actasasananarm schoolsact ofofthe the State State government...."), government. ... "); Doe Doe ex ex rel. Kristen D. v.
v.
13 ' 13 Willies Willits (L1Q'ied IO WL School Dist., 2010 Unified School 890158 ** 7 (ND.
WL 890158 (N .0.Cal. Mar. 8,8, 2010)
Cal. Mar. 20 I 0) (similar), (similar); see also 14 Drummond ex rel. Drummond ex rel. Stare State v_ v. Oklahoma Statewide Statewide Virtual Charter School, --- P.3d Virlzzal Charier P ---, 2024 OK 53
53
15 15 (Okla. 2024)
2024) (holding (holding the the establishment of religious establishment of religious public public charter charter school school illegal illegal and and 16 16 unconstitutional because charter schools because charter schoolsare are"state "stateactors").
actors"). Even Even ififthe the analysis analysis above is incorrect 17 17 and SIFA today is a governmental entity, SIFA SIFA was was no!
not aa governmental entity at at the time it executed 18 18
19 19 PLEASE Contract the PLEASE Contract and and agreed agreed to the lease terms terms relevant relevant to to this this lawsuit.
lawsuit.
20 Under GACSA, GACSA,aaproposed proposedcharter charter school school cannot cannot open open until until after it files aa petition petition with with the the
21 21 Guam Academy Charter Guam Academy Charter School School Council Council and andthe thepetition petitionisisapproved.
approved.See See1717GCA GCA§§12104(b);
l2l04(b); 17
17
22 GCA GCA §§12105.
12105. Such Such aa petition mustinclude petition must include"an "anidentification identificationofa of facility facility for for the the proposed Academy proposed Academy 23 Charter School, including Charter School, includingaadescription descriptionofofthe thesite sitewhere wherethe theschool school willbebelocated."
will located." 17 17GCA GCA §§ 24 I2l05(i). 12105(i).Before Beforea proposed a proposedschool schoolreceives receivesitsitscharter, charter,ititmust must already already have have a campus.
campus. Ms. Cepeda Cepeda 25 testified accordingly. Min. testified accordingly. Min. Entry Entry at at 10:37:00 10:37:00 AM AM (Jul.
(Jul. 331, 1, 2024).
2024). Thus, Thus, at the the time time the the PLEASE PLEASE 26
27 Contract was executed-that Contract was executed-that is, when S[F SIFA agreed to lease lease the the land landininquestion-SIF question-SIFA was was still still aa
28 9 of`11 of 11 1 purely private entity. ItItwas wasnot notyet yetthe theoperator operator of ofaa charter charter school, but merely merely a local local non~profit non-profit
2 corporation corporation hoping hoping Irit would would be be granted granted the power to do so in the future.
future. Because Because SIFA was a purely
3 private entity at the time time itit agreed agreed to the PLEASE Contract, Contract. it would would be be fundamentally fundamentally unfair to 4 allow allow SIFA SIFA to to use use its its purported purported present governmental immunity to governmental immunity to evade this lawsuit.
evade this 5
6 5. SIFA's SIFA's Representation Attornev Phillips Representation by Attorney Phillies 7
8 Finally, the the Court notes that if notes that if SIFA believes believes it is is within within the the Government Government of Guam, Guam, itit is
9 unclear how SIFA could could be be represented represented by by Attorney Attorney Phillips, Phillips, aa private private practitioner.
practitioner. In Guam, the
10 General is required Attorney General required to to "conduct "conduct on on behalf behalf of of the the government governmentof of Guam allcivil Guamall civil actions in 11 which the government is is an an interested interested party, party, provided provided that those branches, branches, departments or agencies 12 which are authorized authorized to to employ employ their own own legal legal counsel counsel may may use use them instead instead of the Attorney Attorney 13 13 General." General." 55 GCA GCA §§30l09(c).
30109(c).Some Somegovernment governmententities, entities,such such as as the the Guam Guam International Airport International Airport 14 Authority, Authority, have have been granted explicit been granted explicit legislative authorization authorization to employ their own own legal legal counsel.
counsel.
15
16 See See 12 GCA §§ 11Il08(c).
12 GCA 08(c). Nothing NothingininGACSA, GA CSA,however, however, grants grants this this type type of ofauthorization authorization to to charter charter
17 schools, and indeed schools, and indeedthe theGuam GuamAcademy AcademyCharter CharterSchool SchoolCouncil Councilisis explicitly explicitly required use the I required to use
18 Attorney General Attorney asits General as itsown own legal legal counsel.
counsel. 17 17 GCA GCA §§ 1211 121 II l(f).
(f). I
19 IflfSIFA SIFA were werepart partofofthe theGovernment Government of ofGuam, Guam, then then the the government would would undoubtedly undoubtedly be be 20 an interested party party in this action, since it seeks millions of of dollars in monetary damages potentially 21 21 payable through the payable through the public public treasury.
treasury. Thus, if if SIFA SIFA were were part part of of the the Government Government of of Guam, Guam, the the 22 Attorney General-not private Attorney General-not counsel-should be private counsel-should arguing on be arguing onbehalf behalfofSIFA.
of While While the Court Court will will 23
24 not speculate on why the Attorney General has not made an appearance in this case, the Court does
25 find the the non-appearance to be non-appearance to beaafactor factorsuggesting suggestingthat thatSIFA SIFA isis not not aa governmental governmental entity.
entity.
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1
2 CONCLUSION 3 Based above analysis, Based on the above analysis, the the Court Court concludes concludes that that SIFA is is not not an an agency, agency, department, 4 instrumentality, public public corporation, or other other entity entity of of the the Government Governmentof ofGuam.
Guam.Accordingly, Accordingly, SIFA 5 is is not a governmental governmental entity entity within withinthe the coverage coverage of the Government Claims Claims Act, Act, which whichmeans means Eagle 6 Land Holdings Holdings was not not required required to to file file a Government GovernmentClaims ClaimsAct Act claim claim prior prior to this lawsuit.
7
8 The Court does does not not lack lackjurisdiction jurisdiction over this this matter, and will proceed and will proceed to hear the Unlawful hear the Unlawful
9 Detainer Detainer on November 6, 2024 at 3:00 pm.
10 SO SO ORDERED this 29th day this 2981 dayof of October, October, 2024.
2024.
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14 ~ .v - r ~ . . .NATHAN . . - ~R~ . QUAN R. QUAN---..
15 Magistrate Judge, Superior Superior Court of Guam
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