Guam Mem'l Hosp. Auth. v. Att'y Gen. of Guam

Opinion

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

5

6

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

17

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

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

3

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.

6

7 IT IS SO ORDERED JUL 2024 JUL 2662024

8

9 -

10 10 HONORABLE ARTHUR

ARTHUR R. BARCINAS

' l1"" ` ~.~ Judge, Superior(fo~rt Judge,-SuperiQt. Gain of

of Guam:'<

Guam,:<

12

13 13

14

15 15

16

17

18 18

19 19

20 20

21

22 22

23

24 24

25 25

26 26

27

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