FILED 5LED CLERK OF OF COU COURT 1
2 2081 PM 5: 1,0 JUL2626 PH 202~ JUL 40 3 SUPEFHOR couRT SUPERIOH COURT oF GUAM,~@ OFGUAM ~ 4
7 IN THE SUPERIOR COURT OF GUAM COURT OF GUAM
8 8
GUAM MEMORIAL HOSPITAL SPECIAL SPECIAL PROCEEDINGS PROCEEDINGS no. NO.SP0025-24 SP0025-24 9 AUTHORITY, AUTHORITY,for foritself itselfand andits Custodian of its Custodian 10 10 Records,
l11l Petitioner, n _ DECISION ANDPRDER > AND;0RDER 12 vs ..... ,R.~.::f.~tjtiorzer-.'s MAf o , ,K.Q1i?@¢i£fQn@r.'5. `ootf9n,, -' in EQ QHOS/"l§UbP0€'3?4. _ W Q4ash~ubpoen!l~ 13 13 .. Ducesu c t s Tecum c u m AND A N RRespondent's·Motio.njor e e tS .M n fb ATTORNEY GENERAL ATTORNEY GENERALOF GUAM, on OF GUAM, on Court ourt O i t n e s s to Appear i r e c t i n g WWitness r d e r DDirecting Order A and · 14 14 behalf of ofhimself, himself, his his office, Jury, Furnish Grand Jury, andaaGrand office,and u r n i s h RRecords, e c o r d s , DDopuments ogf e e s tto the and Papers G r a n d Jury Grand 15 15 Respondent. Respondent.· 16 16
18 This matter came before the Honorable Arthur This Barcinas on Arthur R. Barcinas May 15, on May for aa hearing 15, 2024 for
19 upon PetitionerGuam upon Petitioner GuamMemorial MemorialHospital Authority's("GMHA") HospitalAuthority's Motion to ("GMHA") Motion Quash Subpoena to Quash Subpoena
20 Dices Duces Tecurn Tecum ("Motion ("Motion to to Quash") Quash") and AttorneyGeneral Respondent Attorney and Respondent Guam's("OAG") GeneralofofGuam's ("OAG")
21 Motion Motionfor forCourt CourtOrder OrderDirecting WitnesstotoAppear DirectingWitness andFurnish Appearand Records,Documents FurnishRecords, and Papers Documentsand
22 to the Grand Jury.("Motion Grand Jury ("Motion to Direct"). Direct"). Attorney Pauluhn appeared Jordan Pauluhn AttorneyJordan onbehalf appearedon ofGMHA, behalfof GMHA,
23 and AssistantAttorney and Assistant AttorneyGeneral General("AAG") ("AAG") Lewis appeared on behalf of Harleyappeared LewisHarley the OAG. of the OAG.
24 BACKGROUND
25 I. 1. Motion to Quash
26 On or or about about January 30 or January 30 or 31, 31, 2024, 2024, GMHA GMHA received received aasubpoena subpoena dices duces cecum tecum dated
21 27 January30, January 30,2024, 2024,seeking seekingfor forGMHA GMHA to provide aa series series of ofdocuments documents to to the as grand jury as the grand
2s 28 follows: follows: • • Industrial hygiene reports Industrial hygiene reportson onGMHA GMHA mold inspection, inspection; Decision and Order Decision and Special Proceedings No. SP0025-24
l • • Employment records and· .and'the thedaily dailyavailability availability of GMHA during the at GMHA doctors at OB/Gyn doctors of OB/Gyn
2 2 defined timeframe, timeframe;
3 • • Employment Employment documents, documents, resume, resume, education, GMH documents of GMH supporting documents education, and supporting 4 administrator/CEO, administrator/CEO;
5 5 • • contracts, emails, Recent procurement contracts, records and emails, records other documents and other regarding GMHA's documents regarding GMHA's
6 6 HVAC units, units, supplies, and participating vendors, vendors;
7 • • Procurement contracts, emails, Procurement contracts, emails, records records and and other other documents documents regarding lacking regarding the lacking
8 medications, medical medications, medical supplies, supplies, and and equipment, including "Troponin" equipment, including "Troponin" for heart attack heart attack
9 patients, patients; 10 10 • • Any documents documepts regarding regarding concerns concern~ and _and complaints complaints from>GMHA and patients from,:-,GMHA employees a~ - »:.»==- II a regarding ' mold exposure·safety·coiicems; \·egardinfmold,_expbstrre, ahH Inadequate fonH-BI,..and pest control, concerns pest and · infrastructure ·artd inadequat(fiiifras'fri1ct1i1e
12 12 resources, resources; and
13 [3 • • All environmental studies and reports regarding mold at GMHA.
14 14
Mot. to Quash, Ex. A. On February 14, 2024, GMHA filed the Motion to Quash, arguing that the 2024, GMHA 15 15
power of of grand juries in Guam is limited limited to to inquiring inquiring about about felonies felonies and and related misdemeanors, 16 16
17 17 and does not extend to to civil matters; matters, and that that sovereign sovereign immunity immunity limits a grand jury's jury's power power to
18 18 subpoena government agencies without an express waiver by the Legislature.
19 19 On March 14, 14, 2024, the OAG filed filed its its Response Response to the the Motion Motion to to Quash, Quash, arguing arguing that that
20 20 GMHA does does not have standing to challenge a subpoena issued by the grand jury; jury, that GMHA
21 21 improperly conflates the improperly conflates the grand grand jury jury with the Attorney General; General; that the grand jury has has broad broad 22 power to investigate investigate on the mere suspicion that a law is being violated, or to obtain assurance that 23 the law is not not being being violated, violated, and and the the grand grand _fury jury isis investigating investigating potential potential violations of criminal 24 24 codes by GMHA, GMHA; that that GMHA GMHA is is not not entitled entitled to to shield shield itself itself from from aa grand jury subpoena through 25 reliance on sovereign immunity, immunity; and and that that the the grand grand jury jury subpoena subpoena is is not not defective defective because AAG 26 26 Harley was was authorized to execute the subpoena on behalf behalf of the AG. 27 27
28 28 Page 2 of of 13 Decision and Order Decision and Special Proceedings No. SP0025-24
On On March 28, 2024., GMHA filed 2024! GMHA tiled its Reply Reply in in Support Support of ofthe the Motion Motionto toQuash, Quash, arguing arguing 1
that any any person or or party partyreceiving receiving aa subpoena hasstanding subpoena has standingto tomove move to to quash quashor orto toseek seekaaprotective protective 2
3 order, order; that themotivations that the motivations of of the AG are are always relevant when he or an AAG AAG signs signs and and serves a
4 subpoena, thatthe subpoena; that theAAG's G's discussion of the powers Powers of ofaa grand grand jury fails fails to to discuss discuss statutory statutory limits
5 on the the grand grand jury's jury's jurisdiction, jurisdiction; that that sovereign sovereign immunity immunity is is available available to to government government
6 instrumentalities in all judicial judicial proceedings; proceedings;and and that that the grand jury jury subpoena subpoenaisisdefective defective because
7 it is is issued issued by one grand jury for grand jury for the the appearance appearance before before another, another, and and because it does not bear the 8 signature of the signature of the AG AG or or a judge of ofthe the Superior Court. 9 II. 11. Motion to Direct 10 On bn February February 16, . 20221, 16, ·202~, thethe OAGfiled· OAG filedthe;"Motion the Motionto to Direct, Direct, wfi.ich which was ostensibly FL ostensibly iN "'.'Cf r:,-.. .. ~-- '¢ ".. " |. [2 2" ~ •, -a . .-. f~
response to the response to the Motion to Quash, but directed Quash, but directed GMHA's GMHA's CUstodian Custodian of of Records Records to to appear appear and and 12 12 furnish before the the grand grand jury jury different differentdocuments documentsthan thanthose thosein inthe theJanuary January 30, 30, 2024 2024 subpoena, subpoena, 13 i.e., all documents relating to documents relating to the the contract between GMHA and contract between and Medhealth Medhealth Solutions. Solutions. In the 14 14 Motion Motion to to Direct, Direct, the the OAG OAGstated stated that that "[t]he "[t]hePeople Peoplefurther furthercontends[sic] contends[sic]that thatthe the witness witness has has no 15 15 constitutional privilege privilegetotorefuse refusetotoproduce producesuch suchrecords, records,documents documentsand andpapers papers as as demanded by 16 16 the Grand Grand Jury." Jury."Mot. Mot. to to Direct, at 3. 3. The The OAG OAG further further acknowledged acknowledged the Motion Motion to to quash, Quash, but but 17 17 stated that that"[t]here "[t]here has no motion to stay has been no stay the the compelling compelling of ofthe the custodian of records custodian of records to appear 18
before before the the Grand Grand Jury Jury or for for that that matter matter seeking seeking the the enforcement enforcementofofthe theJanuary January 30, 30, 2024 Grand 2024 Grand 19
Jury SubpoenaDuces Jury Subpoena DucesTecum." Tecum."Id., at 4-5. 4-5. The OAG OAGadded added that, that, for each each day of of noncompliance noncompliance 20 20
21 with the the subpoena subpoena dices duces recur, tecum, GMHA GMHA would would be beassessed assessed aa sanction sanction of of$l,000.00, $1,000.00, plus plus
22 22 reasonable attorney's fees, fees, pursuant to Guam pursuant to GuamLocal Local Rules GR 2.1.
23 23 On March 15, 2024,GMHA 15, 2024, its Response filed its GMHA filed Response to to the the Motion Motion to to Direct, Direct, arguing arguing again again that that 24 24 sovereign immunity bars the immunity bars the enforcement enforcement of of grand jury subpoenas againstGMHA; subpoenas against GMHA, that that no 25 25 subpoenawas wasserved servedon onGMHA GMHA regarding regarding the the Medhealth Medhealth Solutions Solutions contract, contract, and thus the and thus theMotion Motion 26 26 to Direct is in violation violation of ofGMHA's GMHA'sdue dueprocess process right rightto to service serviceof ofprocess, process; that that the OAG OAG seeks seeks 27 27 monetary sanctions and and attorney's attorney's fees fees not not available availableunder under court court rules rules or or Guam Guam law, law; and and that that the 28 13 of 13 Page 3 of I
Decision and Decision and Order Proceedings No. SP0025-24 Special Proceedings
individual that thatthe theOAG OAG seeks seekstotocompel compeldoes doesnot notwork workfor forGMHA. GMHA.The The AG AG did not file tile a Reply 1
in support of the support of the Motion Motion to to Direct. 2 2
3 On May May 15, 15, 2024, 2024, the the Court Court heard heard arguments arguments on on both both motions, motions, and and took took both both matters matters
4 under advisement. advisement.
5 DISCUSSION DISCUSSION
6 The U.S. U.S. Supreme Supreme Court has held that has held the investigative that the investigative powers Powers of of a grand grand jury are are 7 extremely broad. "The function broad. ''The ofthe function of the grand grand jury jury is is to to inquire inquire into into all all information information that that might might 8 possibly bear bear on its investigation investigation until it it has identified an offense or or has satisfied itself itselfthat that none 9 has has occurred." occurred." US. U.S. v. R. Enterprises, Enterprises, Inc., 498 498 U.S. U.S. 292, 292, 297 297 (1991). (1991). "As "As aanecessary necessary }IT consequence ofdhat consequence '1:hat investigatory investigatory fuNction, function, the the grand grand jury. jury. paints paints with aa broad. broaa. brush." brush." Id. '."1'l , -· "Traditionally ''Traditionallythe thegrand grandjury juryhas has been accorded wide wide latitude latitude to to inquire inquireinto intoviolations violations of criminal 12 12 law. No No judge judge presides presides to monitor monitor its its proceedings." U.S. v.v. Casandra, proceedings." US. Calandra, 414 U.S. 338, 338, 343-44 343-44 13 13 (1974)."The (l974). "Thegrand grandjury jurymay maycompel compelthe production of theproduction ofevidence evidenceor orthe the testimony testimony of ofwitnesses witnesses as as 14 14 it considers considers appropriate, and its operation generally is appropriate, and is unrestrained unrestrained by the the technical technical procedural procedural 15 15 and evidentiary rules mies governing governing the the conduct conduct of ofcriminal criminal trials." trials."Id. Id. Thus, Thus,aagrand grand jury jurysubpoena subpoena 16 16 may call for for aa wide widearray arrayofofdocuments documents without without being beingconstrained constrained by by the the evidentiary evidentiary rules rules that that 17 17
will govern will govern at at trial. R. Enterprises, 498 U.S. at at 298. 18 18
The U.S. U.S. Supreme Supreme Court Courtand and the the Guam Guam Supreme Court have further found that there is no 19 19
20 20 threshold showing of suspicion threshold showing required before suspicion required before a grand jury jury can can exercise exercise the the above powers; Powers, the
21 21 grand jury. jury. "Unlike "Unlike aa court, court, whose jurisdiction jurisdiction is is predicated upon aa specific predicated upon specific case case or controversy,
22 22 the grand jury can grand jury can investigate investigate merely merely on the the suspicion suspicion that thatthe thelaw law isis being being violated, violated, or even
23 23 because it wants assurance thatititisisnot." assurance that not."People People v. Nicolai, 2016 Guam 21 ,r SanNicolas, v. San 1115, n.7(quoting 15, n.7 (quoting
24 24 US. U.S. v. v. Morton Morton Salt Salt Co., 338 U.S. 632, 642-43 642-43(1950)). (l950)). The Thefact factthat thataa grand grand jury jury may may or or may not 25 25 already have information information requested requested in the subpoena is not subpoena is not aa reason reasonto to quash; quash,"[t]he "[t]he grand jury is 26 26 entitled to determine thedepth detennine the depthofits of itsinvestigation." investigation." US. U.S. v. v. Doe DoeCorp., Corp.,59 59 F.4th F.4th 301, 301,306 (7th Cir. 27 27 2023). "[T]he "[T]helaw lawpresumes, presumes,absent absentaastrong strong showing showingto tothe thecontrary, contrary, that that aa grand jury jury acts within within 28 28 Page 4 of 13 of 13 Decision and Decision and Order Special Proceedings No. SP0025-24
the legitimate scope omits legitimate scope ofits authority," authority," and and therefore, therefore, "a "a grand grand jury jury subpoena subpoena issued issued through through normal normal I
2 channels is presumed to be reasonable, and the burden of showing unreasonableness must be on
3 3 the recipient the recipient who seeks seeks to to avoid avoid compliance." compliance." R. R. Enterprises, Enterprises, 498 U.S. U.S. at at 300-01. 300-01. "[T]he "[T]he
4 to seek challenging party's unenviable task is to seek to to persuade persuade the the court court that that the subpoena subpoena that has
s 5 been served served on on [him [him or or her] could could not not possibly possibly serve serve any investigative investigative purpose purpose that that the grand jury
6 legitimately be pursuing." Id. could legitimately
7 7 Under Guam law governing Under governing grand grand jury jury subpoenas, "[a] subpoena requiring the attendance 8 of a witness before the grand jury may be signed and of and issued issued by by the the Attorney Attorney General, General, or, upon 9 of the grand jury, by any judge request of of the judge of the Superior Superior Court, Court, in support support of of the prosecution, for 10 JO .th9s~ those . witnesses - . w~ose testimony, whose - testimony, . in. his in opi~ion: .is his opinion" .is material material . - investigation before an..investigation in an. in . . the grand .. .,,,i_.l :
'Ti-: jury GCA§§75.45(a). jury...."" 88GCA In Guam, 75.45(a). In Guam, Me the grand ·grand jury jury is is "summoned "summoned by by the the court court and and· sworn sworn to t6..,.~ 12 inquire into felonies inquire into felonies and and any any related related misdemeanors misdemeanors triable by the triable by the court." court." 88 GCA GCA §§ 50.10(a). A 50. lO(a). A 13 13 subpoena may be quashed or modified "if "if compliance compliance would would be be unreasonable unreasonable or or oppressive." 8 14 14 GCA GCA §§ 75.20. 75.20. 15 15
I. 1. Motion to Quash Subpoena Duces Dices Tecum Tecu,11 16 16 A. The power of of grand juries in Guam is limited to inquiring about felonies and 17 17 related misdemeanors, related misdemeanors, but but the Court cannot make presumptions about the grand jury's 18 18 ultimate ultimate goal in this matter. 19 19
20 GMHA first first argues that, that, while while it acknowledges acknowledges the broad range of the grand jury's jury's
21 investigative power, power, aa party is entitled to seek an injunction against a grand grand jury jury subpoena subpoena where where
22 it is demonstrated that compliance Mot., at 4 (citing R. Enters., compliance is unreasonable. Mot., Enters., Inc., Inc., 498 U.S. at
23 301). GMHA argues that a grand jury jury subpoena may be set aside for various improper purposes,
24 24 including overbreadth, harassment and prosecutorial abuse, abuse, and and compelling witnesses to private 25 interviews with government government agents. agents. Id. (citing In re Grand Jury Subpoena, Subpoena, JK-15-029, 828 F.3d 26 26 1083, 1089 (9th Cir. 2016); In re Grand Jury Proceedings, 33 F.3d 1060, 1060, 1063 1063 (9th Cir. 1994), 1994); 27 27 US. U.S. v. v. Waddington, Waddington, 233 F.3d 1067, 1075 (8th Cir. 2000)). 2000)). GMHA asserts that, that, while the rules 28 Page 5 of Page 13 of 13 Decision and Order Decision and Special Proceedings No. SP0025-24
governing governing secrecy secrecy of if make it difficult for GMHA to determine if of the grand jury would ordinarily make l
the OAG issued issued the the subpoena subpoena for for an an improper Attorney General purpose, Attorney improper purpose, Douglas General ("AG") Douglas 2
3 made nu oyla n hass ma Moylan mer numerous ppublic u sstatements ement s to t o media ou ha t the let s that outlets he purpose his os e of his
4 investiga investigation deter mine whether to determine tion isis to whether the the hospital hospita l is is unsafe tients, so for patients, unsa fe for tha t he so that may he ma
5 subsequently subsequently seek seek to to have have aa federal receivership receivership imposed imposed on onGMH. Mot., at GMH. Mot., citing Joe Taitano at 55 (citing
6 II, AG: GMI-I invesfigatedfor GMH investigated for 'dangerous sought, Pacific Daily conditions', receivership could be sought, 'dangerous conditions 7 News (Jan. (Jan. 30, 30, 2024), 2024); Nestor Nestor Licanto, Licanto, Attorney General floats floats idea of of of potential take-over of 8 GMH, KUAM KVAM News News (Jan. (Jan. 31, 31, 2024), 2024); Troy Tories, Torres, Doctors blow whistle about GMH, whistle about GMH AG now 9 's investigating possible criminal conduct, Kandit News (Jan. 2024), John O'Connor, AG's (Jan. 20, 2024); 10 Qffce office investigating in;estigating alleged da"'n¥er'ous dangerous concJitiC?,ns conditions a! at hospital, The Guam· hospital, The (Ja11. 31, ~?st (Jan. Guam Daily Post '°l F 2024)). action seeking argues that. an action 2024)). GMHA argues federal receivership seeking aa federal not criminal, receivership is not is criminal, but is 12 expressly federal and civil remedy pursuant. expressly a federal to Fed. pursuant to Fed. R. Civ. P. R. Civ. for improper for P. 67, and thus improper 13 consideration by a Guam grand jury, whose inquiries are limited only to consideration by to felonies felonies and and related related 14 misdemeanors misdemeanors that that are are triable triable by the Superior Superior Court Court of of Guam. Mot., at 6. 15 GMHA further argues that the subpoena is an overbroad fishing expedition GMHA further the part of on the expedition on of 16 the OAG, seeking, inter alia, procurement information regarding "lacking medications, medical alia, procurement 17 supplies, sµpplies, and equipment," to which GMHA argues that it could not know what the OAG alleged GMHA argues 18 18 to be lacking or if that to that list list includes GMHA does not regularly items GMHA includes items cony. GMHA added regularly carry. that it added that 19
20 20 would not have have procurement procurement contracts contracts for for items that that it allegedly lacks. GMHA GMHA also also asserts asserts that
21 the subpoena's request for "all documents regarding regarding concerns complaints from concerns and complaints from GMHA
22 22 employees employees and and patients patients regarding Mold Mold exposure, exposure, safety safety concerns, pest control, and inadequate
23 infi'astructure to obtain patient resources" constitutes an attempt to and resources" infrastructure and safety work patient safety product. GMHA work product. GMHA
24 24 argues that patient argues that work product safety work patient safety product is is privileged privileged from from disclosure disclosure under under federal federal law law 42 42 CFR CFR §§ 25 3.204(a), and that if if the the hospital hospital produces violating the above statute would be violating information, it would such information, produces such 26 26 and heavily fined. fined. 27 27
28 of 13 Page 6 of 13 Decision and Order Decision and Special Proceedings No. SP0025-24
In the Opposition, the OAG argues that the Court does not have subject matter jurisdiction jurisdiction 1 to hear GMHA's claim to claim because because GMHA GMHA has has not demonstrated standing not demonstrated challenge the grand standing to challenge 2
3 jury subpoena, noting that "[w]hen aa party party lacks lacks standing, court is without standing, the court subject matter without subject
4 4 the claim.'' jurisdiction to hear the Ct., 2012 Guam 17 i! claim." Opp., at 2 (citing GMHA v. Superior Cf., 8). The jj 8).
s 5 OAG argues that GMH has not demonstrated injury in fact, OAG key element fact, aa key to demonstrate element required to demonstrate
6 standing under the common law.
7 7 The OAG further argues that GMHA improperly conflates the grand jury with the OAG, OAG further 8 stating that, while stating that, while AAG AAG Harley subpoena, it was also Harley may have signed the subpoena, executed by the also executed 9 Foreperson of the Foreperson of Grand Jury the Grand "despite the Jury "despite the fact that under fact that under [8 [8 GCA GCA §§ 75.45(b)], the AAG 75.45(b)], the AAG was was 10 lO empowered empowered to to- unilaterally uniiaterally issue issue thesubpoena." the subpoena'."Opp., Opp., ·oAG_ argues TheOAG. atat6.6. The argues that that the Foreperson' the Foreperson's . - .. . . . . -... ' ' - . ' ( . . .',: -~ ... .. ---- ·~ .Zv. :,'i'. f· - ' -. f `]`. i *- ,s.,;e,, r
execution of the subpoena demonstrates demonstrates that that the the grand grand jury independently found jury independently GMHA to be found GMHA 12 12 worth investigating. 13 13 Finally, the OAG OAG asserts asserts that, that, pursuant pursuant to People People v. San Nicolas, "the grand jury can San Nicolas, 14 14 investigate merely on the suspicion investigate merely that the suspicion that the law law is being violated, because it wants violated, or even because 15 15 assurance that that itit is is not." not." 2016 2016 Guam Guam21 ,r 15, 21 'H 15, n.7 n.7 (citing (citing US. Williams, 504 U.S. 36, v. Williams, U.S. v. 48 (1992). 36, 48 (l992). 16 16 The OAG OAG argues argues that, despite despite GMHA's GMHA's reference to AG Moylan's regarding federal statements regarding Moylan's statements 17 17
receivership, this matter does not implicate receivership or any civil remedy, involves a grand remedy, but involves 18
jury that seeks to criminal codes by GMHA. violations of criminal to investigate potential violations 19 19
20 20 As GMHA GMHA acknowledges, acknowledges, aamotion motionto to quash quashaa grand grand jury carries with it a heavy subpoena carries jury subpoena heavy
21 burden, and a motion to quash burden, and quash must be be denied denied unless no reasonable "there isis no unless "there possibility the reasonable possibility
22 22 to the grand jury's subpoenaed materials will produce information relevant to jury's investigation." Mot.
23 23 (quoting In re Grand Jury Subpoena dated August to Quash, at 44 (quoting (8th Cir. August 14, 2019, 964 F.3d 768 (Sth
24 24 2000)). As GMHA also acknowledges, the the party seeldng seeking to quash such a subpoena must present 25 25 particularized proof of particularized proof of an an improper improper purpose purpose in in order to of propriety to overcome the presumption of 26 26 on behalf behalf of of the grand jury. Id. Id. (citing In re Grand Jury Proceedings, .3d 40 (2d Cir. 2020). Proceedings, 971 F.3d 27 27
28 13 of 13 Page 77 of Page Decision and Decision and Order Special Proceedings No. SP0025-24
review, the Upon review, the Court Court finds that GMHA GMHA isissimply simplyunable unable to to meet meet that that heavy burden burden of of l proof.While Whilethe thestatements statements of ofthe the OAG OAGhave have been been submitted by GMHA submitted by GMHA as evidence of of improper improper 2
3 motive, the motive, the Court Court does does not not find find the thestatements statements to to be bethe theparticularized particularized proof proof that that these these
4 circumstances warrant, circumstances warrant, but but circumstantial circumstantial evidence evidence that that the the Court Court cannot cannot draw draw aa definitive
5 conclusion conclusion from. Given Giventhe the weight weightofofthe thegrand grandjury's jury'ssubpoena subpoenapower, power,the theCourt Courtcannot cannot subvert subvert
6 that that power based based on on its its own ownpresumptions presumptions but but requires requires concrete concrete proof, and and thus thus the the Court Court 7 DENIES the Motion to Quash. Motion to Quash. 8 B. The The Court Court finds fmds that GMHA does that GMHA doesnot notenjoy enjoy sovereign sovereign immunity. immunity. 9 GMHA GMHA argues argues that that sovereign sovereign immunity immunity limits limits the the grand grand jury's jury's power power totosubpoena subpoena 10 governmeNt agencies w_itho'ut gove~eht agencies art without ahexpress waiver by expres~ waiyer by the the Legislature. Legislature. GMHA GMHAasserts assertsthat, that. under under ,I,l 5
. t1" 1·· '--: . L -1
Guam law, the government otliuam at Guam enJoys en] os broad broad sovereign sovereignimmunity, immunity,and and this this immunity immunity extends extends 12 to the instrumentalities instrumentalitiesor oragencies agenciesof of the thegovernment. government.Mot., Mot., at at 8-9 8-9(citing (citing Guam Guam Fed Fed'n of Tc/urs. ofTchrs. 13 ex ex rel Rector v. Perez, 2005 Guam 25 ii,r 18; Rector v. Bautista v. Agustin, 2015 Guam 23 ,ri118. 18; Bautista 14 In opposition, the OAG argues thatGMHA argues that GMHA is is not not entitled to shield itself itselffrom from aa grand grand jury 15 subpoena throughreliance subpoena through relianceon onsovereign sovereign immunity. immunity. The The OAG OAGasserts asserts that, pursuanttoto10 that, pursuant 10GCA GCA §§ §§ 16 80105.1(a) 80105. l(a) and (c), the may be the Board may be found found liable liable for the the negligence negligence of any hospital hospital employee or 17 17
officer officer ififthe theBoard Boardwas wasaware aware that that said said employee employee or orofficer officerwas wasincompetent incompetentor orretained retained that that 18 18
person after becoming person after becoming aware aware of of their their incompetence, and the incompetence, and the Board Board may may be found liable as as 19 19
20 20 fiduciaries in in the the execution execution of oftheir their duties. duties. The The OAG OAGfurther further argues argues that the sovereign that the sovereign immunity
21 clause of the the Organic Act Act of ofGuam Guamdoes doesnot notinclude includeimmunity immunityfrom fromgrand grandjury jurysubpoenas, subpoenas, and and
22 22 that any anypotential potential criminal criminal actions actionsfound foundwould wouldbe beoutside outsidethe thegovernmental governmentalauthority authorityofofGMHA, GMHA,
23 23 meaning sovereign sovereign immunity immunity does not apply to to those those actions. actions. Opp., at at 9-10. 24 24 The Guam Supreme Supreme Court Courthas hasheld heldthat thatthe thedoctrine doctrineof ofsovereign sovereign immunity immunity implicates the 25 25 Court's Court's subject subject matter jurisdiction. jurisdiction.Battista Bautista v. 23,rii 16. v. Agustin, 2015 Guam 23 16. Sovereign Sovereign immunity 26 26 can be waived only only by byduly dulyenacted enacted legislation, legislation,and and absent absent such legislation, the Government Government of 27 27 Guam cannot be sued. sued. Guam Police Police Dept. Dept. v.v. Super. Super. Co. ofGuam, 2011 Guam 8 ,r Ct. of 'll 7. 7. The The Supreme 28 28 Page Page 8 of 13 of 13 Decision and Decision and Order Special Proceedings No. SP0025-24
Court has identified the two most common sources of a waiver of sovereign immunity as (1) the 1
2 Government Claims Act, and (2) statutes that grant the right to sue and be sued. Bautista, Battista, 2015
3 Guam 23 ,r 32. 23 11 32. Pursuant Pursuant toto the the Government Government Claims Claims Act, Act, the the Government Government may waive· may only waive
4 immunity from immunity from suit for: for: (1) 1) all all expenses expenses incurred incurred in reliance reliance upon contract to which the upon a contract the
5 of Guam is a party, Government of party; and (2) for claims in tort, arising from the negligent acts of its
6 employees acting for and at at the direction of the government of of Guam, even though occurring in 7 an activity an activity in in which which private private person person do do not not engage. engage. 55 GCA GCA §§ 6105. 6105. However, However, the the Supreme Supreme Court Court 8 has found that the Guam Legislature Legislature can can waive the sovereign immunity of a public entity by sovereign immunity 9 corporate name. Bautista, granting it the right to sue or be sued in its own corporate Bautista, 2015 Guam Guam 23 ,r 28. 23 'Ii 10? Supreme ·couh to;, The Supreme Coult'thas has fyrt~e~ furtherfo.und)that found that there there isis no· prebedent whic~ no precedent limits ,1the Guam which limits ~:iuam 5.
~': ».¢ ::..,1. ~· ' 11: i l , ,- to waive sovereign immunity Legislature's ability to immumty only only to to those those claims claims lying lying in in tort tort or or contract. contract. 12 12 San Agustin v. Mansapit-Shimizu, 2020 v. Mansapit-Shimizu, +020 Guam Guam 25 ,r 29-30. Pursuant 25 1129~30. Pursuantto to 10 10 GCA GCA §§ 801(i), 801(i), GMHA GMHA 13 has been so empowered to sue or be sued sued in in its its own name. 14 14 Accordingly, the Accordingly, the Court finds that GMHA does not enjoy sovereign immunity from a valid 15 15 grand jury subpoena. 16 16 C. The grand jury subpoena subpoena is is not not facially defective. 17 17
GMHA further argues that that the the grand grandjury jurysubpoena subpoenasis facially faciallydefective defective because because (1) (1) it was 18
only signed signed by AAG AAG Harley Harleyarid and the the foreperson of of the grand jury, jury, and and (2) the grand jury subpoena 19
20 20 was issued by a Tuesday grand jury on January 30, 2024, to appear before a Thursday grand jury jury
21 15, 2024. on February 15,
22 22 First, GMHA argues First, argues that that a grand grand jury subpoena subpoena may signed by the may only be signed the Attorney Attorney
23 23 General, or, upon request request of of the the grand jury, jury, by by any judge judge of of the the Superior Superior Court. Mot. to Quash,
24 24 at 15-16 at 15-16 (citing GCA §§ 75.45). (citing 88 GCA 75.45). In In the the opposition, opposition, the the OAG OAG argues argues that that AAG AAG Harley Harley was was 25 25 authorized authorized to execute the to execute the subpoena because, pursuant subpoena because, pursuant to to 55 GCA GCA §§ 30109(b), either the 30109(b either the Attorney Attorney 26 26 General himself, a deputy General himself, deputy attorney attorney general, general, or an assistant assistant attorney attorney general general may, inter alia, alia, 27 27 conduct grand jury jury proceedings. 28 28 Page 9 of13 Decision and Decision and Order Special Proceedings No. SP0025-24
In the reply, GMHA argues that, while AG Moylan Moylan may may act act through through aa deputy deputy or or assistant I
in conducting grand jury proceedings, the the grand grand jury jury subpoena power power is is limited to to AG Moylan 2
3 personally or ajudge personally or judgeofofthe theSuperior SuperiorCourt. Court. GMHA GMHAargues argues that, that, because because 88 GCA GCA §§75.45 75.45 expressly expressly
4 mentions the mentions the Attorney Attorney General General and and Superior Superior Court Court judges, judges, and and fails fails to mention assistant attorney mention assistant
5 expressio unius generals, then the canon of expression est exclusion units est exclusio alterius alterius dictates that the Legislature only
6 intended the statute to apply to to the the Attorney Superior Court judges. Attomey General and Superior judges.
7 The Court does not agree with GMHA's interpretation. While GMHA's interpretation. While the the Court Court does does find that the 8 expressionuniu.s units doctrine applies, there is no express indication whether whether the statute statute indicates the 9 Attorney General General in the singular, or in the the official official capacity capacity encompassing encompassing his office. office. Upon Upon review 10 10 or"the of the {].uties duties of the Attomey-Oeneral, Attorney?General, there there isis ~o no statutory statutoryduty duty afforded Jo the Attorney GenerM affordedio General .~ {1 -'~ v 4. ' L I. c,,,i,.,.; ' that is not that is· not also afforded to also afforded or assistant. deputy or to a.a deputy' assistant. See See 55 GCA GCA §§ 30109. 30109. The The Court Court ·finds· that that AAG AAG 12 12 Harley, when when ordered ordered to do so by the Attorney Attorney General, is effectively effectively an extension of thy the Attorney Attorney 13 13 General in all his capacities, including the issuance of of grand jury subpoenas. 14 14 Second, GMHA argues argues that, that, because the grand jury subpoena issued by a Tuesday jury 15 15 was for an appearance Thursday grand jury, the subpoena is defective because appearance before the Thursday because one 16 16 grand jury does not have the power power to to act act for for another another grand grand jury. Mot. to Quash, at 16 (citing In 17
re GrandJury.Proceeding, JuryProceeding, 971 F.3d 40, 50 (2d (ad Cir. Cir. 2020) 2020) (holding (holding that each new grand jury must 18
issue its own subpoena). 19 19
20 20 In the opposition, opposition, the OAG argues argues that that In re re Grand Grand Jury Jury Proceeding Proceeding should should not be
21 21 persuasive in this case case because because itit "seemed "seemed to to involve involve the need for a newly newly empaneled Grand Jury
22 22 to re-issue a subpoena issued by the previous, adjourned, Grand Jury," and "does not not appear appear to
23 address address the present present situation situation of concurrent concurrent Grand Juries Juries issuing issuing subpoenas subpoenas and and receiving receiving 24 24 testimony." The OAG OAG argues argues that, that, to the extent that this presents an issue, itit is is likely likely endemic endemic to 25 the Judiciary's entire grand jury system and and not not isolated to this case, and is also also a harmless handless error 26 26 which can be easily remedied remedied by by rescheduling rescheduling so so that that the the appearance appearance is before the issuing grand 27 27 jury. Jury. 28 Page 10 10 of 13 ofl3 Decision and Decision and Order Special Proceedings No. SP0025-24
The Court agrees that this is a.de minims issue and can Deminimis can be be remedied remedied through rescheduling. I
2 Accordingly, the Accordingly, the Court Court finds finds that, extent that the subpoena that, to the extent subpoena is is defective defective at at all, all, the error is a
3 hannless one handless one and and not not sufficient sufficient to outweigh the grand jury's subpoena authority. jury's subpoena authority.
4 Finally, regarding the conflict alleged alleged between between the OAG and GMHA, the Court does not
5 find it material to this decision, but a symptom symptom of of a much larger issue still in dispute and and beyond beyond
6 the scope of of these particular motions. motions. Accordingly, Accordingly, the Court will refrain from from taking them them under
7 consideration at consideration at this point point in in the the proceedings proceedings. 8 II. 11. Motion to Direct a Witness to Appear 9 OAG argues The OAG argues for for the the Court Court to to issue issue an an Order Order directing directing the GMHA GMHA Custodian Custodian of of 10 Rec~rds 1'to appear Records appear before before· the1'grand and furnish grand jury and furnish "[a]ll "[a]ll documents documents related related to to the the contract? contra~t; , [ 1Q* 1(':'' between Medhealth Medhealth Solutions Solutions and [GMHA]" [GMHAJ" whiCh includes,bUt is not limited to: which'includes,'but »=. 12 12 •• ameµdments; .. The original contract and all amendments, 13 •• All correspondence between Medhealth Solutions and GMHA; GMHA, •• correspondence from and to attorney Jeremiah All correspondence Jeremiah Luther regarding Medhealth Solutions, Solutions; 14 14 •• All correspondence from and to the OAG regarding Medhealth Solutions, Solutions; 15 •• contract; All invoices and receipts related to the contract, •• All rreports ts and other other deliver bles submitted deliverables submitted byby Medhea lth SSolutions Medhealth olutions and nd GMHA 16 regarding the Medhealth Solutions' contract, contract; and 17 • • All records related to the performance ofof said said contracts.
18 18
Mot. to Direct, at 2. 2. The The Motion further further states states that that "[GMHA], "[GMHA], by and though[sic] counsel, filed 19 its Motion to Quash the the production production of the the requested requested documentation documentation as as described in in the Grand Jury 20 20 Subpoena duces Tecum of dices Tecum ofJanuary January 30, 30, 2024," 2024," and that that the OAG OAG requests, requests, in addition addition to the 21
enforcement of the January 30, 2024 2024 subpoena, subpoena, that that "for "for each each day day of noncompliance with the 22 22
23 January 30, 2024 January Grand Jury Subpoena Duces Tecum, that [GMHAJ 2024 Grand assessed as a sanction [GMHA] be assessed
24 24 $1,000 for each day of noncompliance, plus reasonable attorneys' fees." fees." Mot. Mot. to to Direct, Direct, at at 3-4.
25 Finally, the OAG requests that the Court "enter an order directing Ms. ROSITA T. FEJERAN to
26 furnish before and to the Grand Jury of Guam the records, documents and papers, hereinbefore furnish
27 27 described." described." Id. at 4. 28 Page 11 of 13 13 Decision and Order Decision Special Proceedings No. SP0025-24
In its Response, GMHA GMHA argues argues that that the Motion Motion to to Direct riddled with Direct riddled errors that render with errors render it 1
facially defective. GMHA asserts, alia, that the OAG did not asserts, inter alia, serve aa grand jury subpoena not serve 2
3 covering covering the the topics for which he seeks to compel testimony testimony in Motion to the Motion in the Direct, that the person to Direct,
4 the OAG OAG seeks seeks to direct is not the GMHA Custodian of employee at or a GMHA employee of Records or all, that at all,
5 Jeremiah Jeremiah Luther General acted as legal counsel for GMHA Luther and the Attorney General the Medhealth GMHA during the Medhealth
6 procurement procurement and and that the communications between them communications between and GMHA them and covered by attorney- GMHA isis thus covered 7 client privilege, and that the motion motion requests enforcement of a different time frame than the time enforcement of 8 frame described in the January 30, 2024 subpoena. 9 g At the May "Rosita T. subpoena "Rosita to subpoena request to May 15, 15, 2024 2024 hearing, hearing, when when asked asked about the request about the 1-0 10 Fejeran," Fejeran," the OAG. ·oA0. stated that itit wa~ stated that did not but did typo, but was aa typo, not . address any address any of the ._other ... inconsistencies . .. -rr-'-· ·- in i~ the Motion Motion to to Direct. the OAG F~rther; the Di~e~t. Further, file a reply OAG did not file disputing any of repiy disputing points in. of the points 12 12 GMHA's opposition. GMHA's opposition. 13 Upon review of of the the record, and the arguments, the Court DENIES the Motion to Direct, 14 on the grounds that it has not been filed in accordance with any preceding grand grand jury subpoena, 15 15 and that it seeks facts of this litigation from a person unrelated to this matter. facts outside the scope of 16 16
sanction and request for attorney's fees that the OAG In regards to the $1,000 per day sanction 17 seeks to impose on on GMHA, GMHA, the the Court cites to the Local Rules denies the request. The OAG cites Court also denies 18
19 of of Guam GR 2.1~ in support of its request, the Court denies the request because the Motion to GR 2.1,
20 20 Quash is a valid response to the grand jury subpoena, and is thus neither a contemptuous nor
21 intentional violation violation implicating implicating the provisions of the provisions GR2.2.1. ofGR l
22 22 /Ill //
23 II //
24 24 /I 25
26 26
27 27
28 of13 12 of Page 12 Decision and Decision and Order Special Proceedings No. SP0025-24
I
2 CONCLUSION
4 Based on the the foregoing, the the Court Court hereby GRANTS the Motion Motion to to Quash Quash and and DENIES DENIES
5 the Motion Motion to Direct.
7 IT IS SO ORDERED JUL 2024 JUL 2662024
9 -
10 10 HONORABLE ARTHUR ARTHUR R. BARCINAS ' l1"" ` ~.~ Judge, Superior(fo~rt Judge,-SuperiQt. Gain of of Guam:'< Guam,:<
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