IN RE: REQUEST OF LOURDES A. LEON GUERRERO, I MAGA' HÅGAN GUÅHAN, RELATIVE TO THE POWER OF THE EXECUTIVE BRANCH TO ESTABLISH, MAINTAIN, AND OPERATE QUARANTINE FACILITIES IN GUAM AND TO PROMULGATE QUARANTINE AND SANITATION REGULATIONS FOR THE PROTECTION OF GUAM AGAINST THE IMPORTATION AND SPREAD OF DISEASE.

• Court: Supreme Court of Guam
• Decided: July 2, 2021
• Docket: CRQ20-002
• Status: Published

Opinion

IN THE SUPREME COURT OF GUAM

IN RE: REQUEST OF LOURDES A. LEON GUERRERO, I MAGA’HÅGAN GUÅHAN, RELATIVE TO THE POWER OF THE EXECUTIVE BRANCH TO ESTABLISH, MAINTAIN, AND OPERATE QUARANTINE FACILITIES IN GUAM AND TO PROMULGATE QUARANTINE AND SANITATION REGULATIONS FOR THE PROTECTION OF GUAM AGAINST THE IMPORTATION AND SPREAD OF DISEASE

Supreme Court Case No.: CRQ20-002

OPINION

Request for Declaratory Judgment Pursuant to Section 4104 of Title 7 of the Guam Code Annotated Argued and submitted on May 7, 2021 Via Zoom video conference In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 2 of 36

Appearing for Petitioner Appearing for Party in Interest I Maga’hågan Guåhan: Public Defender Service Corporation: Sophia Santos Diaz, Esq. Brian Eggleston, Esq. Leslie A. Travis, Esq. Assistant Public Defender Office of the Governor of Guam Public Defender Service Corporation Ricardo J. Bordallo Governor’s Complex 779 Rte. 4 Adelup, GU 96910 Sinajana, GU 96910

Appearing for Party in Interest Appearing for Party in Interest Department of Public Health and I Mina’trentai Sais Na Liheslaturan Guåhan: Social Services: Ana Won Pat-Borja, Esq. Shannon J. Taitano, Esq. Legislative Counsel Chief Deputy Attorney General Guam Legislature Legal Bureau 163 W. Santo Papa Joseph A. Perez, Esq. Hagåtña, GU 96910 Janice M. Camacho, Esq. Assistant Attorneys General Appearing for Amicus Curiae Office of the Attorney General Attorney General of Guam: 590 S. Marine Corps Dr. James L. Canto II, Esq. Tamuning, GU 96913 Deputy Attorney General Jordan Lawrence Pauluhn, Esq. Assistant Attorney General Office of the Attorney General 590 S. Marine Corps Dr. Tamuning, GU 96913 In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 3 of 36

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

PER CURIAM:

[1] Petitioner Lourdes A. Leon Guerrero, I Maga’hågan Guåhan (“the Governor”), filed a

Request for Declaratory Judgment under 7 GCA § 4104 requesting this court interpret portions

of the Islan Guåhan Emergency Health Powers Act (“EHPA”) (10 GCA § 19101 et seq. (2005))

relative to the Governor’s power over public health and quarantine in the Organic Act of Guam

(codified at 48 U.S.C.A. § 1421g(a) (Westlaw through Pub. L. 117-20 (2021)). The Governor

also requested we declare sections 19604 and 19605 of the EHPA inorganic and void for

violating separation of powers principles.

[2] The Organic Act of Guam bestows specific quarantine powers to the Governor, and we

hold that the legislative enactment of section 19605 impermissibly encroaches upon that power.

Section 19605 is inorganic and void. We also hold that section 19604 does not violate separation

of powers and does not permit a statutory challenge to a quarantine order issued by the

Department of Public Health and Social Services (“DPHSS”). Even with no statutory challenge

in the EHPA to a quarantine order, we hold that constitutional challenges are permitted and

subject to the principles set forth by the United States Supreme Court in Jacobson v.

Massachusetts, 197 U.S. 11 (1905). Finally, we hold that the courts of Guam have the inherent

power to review agency action for arbitrariness, capriciousness, and abuse of discretion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] On March 14, 2020, the Governor issued an executive order declaring a state of

emergency to respond to the novel coronavirus (“COVID-19”). See Exec. Order No. 2020-03 at In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 4 of 36

1. Following the first three confirmed cases of COVID-19, the Governor implemented several

emergency measures by executive order to contain the spread of COVID-19, including the

quarantine of incoming travelers in government facilities. See Exec. Order No. 2020-04 at 1-2.

The Governor also evoked her power under the EHPA and designated DPHSS as the Public

Health Authority. See Exec. Order No. 2020-03 at 1. DPHSS has issued and continues to issue

directives and quarantine guidance memoranda as an evolving response to COVID-19. Compare

DPHSS Guidance Mem. 2020-11 Rev4 (July 24, 2020) (no quarantine or negative test required

for incoming travelers from low risk areas staying less than five nights), with DPHSS Guidance

Mem. 2020-11 Rev12 (June 18, 2021) (all incoming travelers subject to a ten-day quarantine

period with exemption for fully vaccinated individuals and home quarantine for those arriving

with negative COVID-19 test).1

[4] As in other jurisdictions across the nation, lawsuits were filed challenging executive and

agency actions in response to measures implemented to slow the transmission of COVID-19.

The Superior Court of Guam heard individual challenges to quarantine orders issued by DPHSS.

See, e.g., Ikei v. Dep’t of Pub. Health & Soc. Servs., SP0138-20/SP0141-20 (Finds. Fact &

Concl. L. at 2 (Oct. 27, 2020)). The Public Defender Service Corporation (“PDSC”) was

appointed to represent individuals or groups of individuals subject to quarantine who were not

otherwise represented by counsel. See Igros v. Dep’t of Pub. Health & Soc. Servs., SP0127-20

(Gen. Order Appointing Pub. Def. Serv. Corp. Represent Persons in Quarantine & Entering

Quarantine (Sept. 25, 2020)). Some challenges succeeded in releasing individuals from

government facilities to home quarantine or without requiring home or self-quarantine. See 1 DPHSS Guidance Memoranda are posted online at http://dphss.guam.gov/covid-19-jic-releases- executive-orders/. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 5 of 36

Bellis v. Dep’t of Pub. Health & Soc. Servs., SP0207-20 (Dec. & Order at 5 (Dec. 3, 2020));

Ikei, SP0138-20/SP0141-20 (Finds. Fact & Concl. L. at 26-27).

[5] Against this backdrop, the Governor requested declaratory judgment over five questions

of law. Req. Declaratory J. at 6 (Dec. 24, 2020). First, whether “CDC guidelines are mandatory

in Guam.” Id. at 11. Second, whether CDC guidelines about quarantine for travelers are

“binding on DPHSS such that DPHSS may not implement a quarantine policy that is more

restrictive than CDC guidelines.” Id. Third, whether quarantine orders may “be challenged on

constitutional grounds even where they reasonably bear a relationship to the public health

emergency and do not result in a plain and clear invasion of fundamental rights.” Id. And if yes,

“what level of scrutiny should be applied to the court’s review, whether rational, intermediate, or

strict?” Id. Fourth, whether a court may “grant a request for release from quarantine on the basis

of amenities provided in quarantine facilities.” Id. Last, whether a court may “modify a lawful

quarantine order issued by DPHSS or does such modification impinge on the Governor’s power

and duties to quarantine and protect against the spread of disease and interfere with the

operations of the Executive Branch,” and if so, “[u]nder what circumstances may a court modify

a lawful quarantine order issued by DPHSS?” Id.

[6] PDSC filed an Interested Parties’ Motion to Deny Request for Declaratory Judgment or,

in the Alternative, Permit Public Defender Service Corporation to Intervene as Respondent on

Behalf of Incoming Travelers Subject to Quarantine. This court granted in part and denied in

part PDSC’s motion and certified two of the Governor’s questions for declaratory judgment.

The court also granted PDSC’s request to represent the interests of incoming travelers subject to

quarantine. The parties were invited to brief these two certified questions. First, may quarantine In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 6 of 36

orders be challenged on constitutional grounds? Order & Scheduling Order at 5 (Dec. 31, 2020).

If yes, what level of scrutiny should be applied to a court’s review, whether rational,

intermediate, or strict? Id. And second, may a court modify a quarantine order issued by

DPHSS? Id. If yes, under what circumstances, and does such modification impinge on the

Governor’s power and duties to quarantine and protect against the spread of disease and interfere

with the operations of the Executive Branch? Id. at 6.

[7] In her reply brief, the Governor asserted a new issue arguing 10 GCA §§ 19604 and

19605 of the EHPA were inorganic and void for violating separation of powers principles. We

exercised our discretion to review the newly raised separation of powers issue. See Second

Order & Scheduling Order at 2 (Mar. 9, 2021). The court also invited interested parties to brief

whether statutory challenges to quarantine orders are permitted under 10 GCA §§ 19604 and

19605, and, if so, how are sections 19604 and 19605 reconciled with the quarantine powers

granted to the Governor in the Organic Act? See id. at 3-4. The Governor moved to strike pages

5-13 of PDSC’s brief responding to the newly raised separation of powers issue. The Governor

argued that PDSC went beyond the separation of powers question. Given the complexity of the

questions before the court and the shifting nature of the litigation, we denied the motion and

invited the Governor to respond to PDSC in her supplemental reply brief. The court received

interested party briefs from PDSC, DPHSS, I Mina’trentai Sais Na Liheslaturan Guåhan (“the

Legislature”), and the Office of the Attorney General as amicus curiae.

II. JURISDICTION

[8] The Supreme Court has original jurisdiction over declaratory judgment actions. 7 GCA §

4104 (2005). The governor of Guam may request a declaratory judgment “as to the In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 7 of 36

interpretation of any law, federal or local” and “upon any question affecting the powers and

duties of I Maga’[håga] and the operation of the Executive Branch.” Id. In addition,

“declaratory judgments may be issued only where it is a matter of great public interest and the

normal process of law would cause undue delay.” Id.

[9] By Order dated December 31, 2020, the court certified two questions for declaratory

judgment after scrutinizing the questions under a 7 GCA § 4104 subject matter jurisdiction

analysis. See Order & Scheduling Order at 5-6. The Governor’s questions requested

interpretation of local laws; therefore, the court could address the questions by declaratory

judgment. See id.

[10] In her Reply Brief, the Governor raised a new argument as a reply to PDSC’s statutory

interpretation of whether a court may modify a DPHSS quarantine order. The Governor asserted

for the first time that the Legislature exceeded its power by passing sections 19604 and 19605 of

the EHPA because those sections usurp the Governor’s quarantine powers in the Organic Act.

Reply Br. at 2 (Mar. 2, 2021). We exercised our discretion to review the new argument. Second

Order & Scheduling Order at 2 (“Issues raised for the first time in a reply brief are deemed

waived unless we decide to review them in the exercise of our discretion.” (quoting People v.

Borja, 2017 Guam 20 ¶ 28)).

[11] In its Supplemental Brief, PDSC argues jurisdiction is not proper because the questions

certified in the December 31, 2020 Order were certified under the first subject matter prong—

interpretation of the law. PDSC’s Suppl. Br. at 1 (Apr. 6, 2021). The Governor, however, raised

a new separation of powers issue, and separation of powers questions have only ever been In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 8 of 36

certified by the court under the second subject matter prong—questions affecting the powers and

duties of the Governor and Executive Branch. See id. at 1-2.

[12] Separation of powers questions are proper subject matter for declaratory judgment

actions. See, e.g., In re Request of Governor Carl T.C. Gutierrez, Relative to the Organicity &

Constitutionality of Pub. Law 26-35 (“In re Request of Governor Gutierrez II”), 2002 Guam 1 ¶

18 (“[T]he Governor may obtain review of an issue under section 4104 if his request affects his

powers and duties as Governor and the operation of the Executive Branch.”). In In re Request of

Governor Gutierrez II, we elaborated on the separation of powers questions permitted under

section 4104. Id. ¶ 25. “[S]ection 4104 contains limiting language, and the court is only

permitted to address questions that involve allegations that one branch’s actions ‘impinge’ on the

other branch’s operations.” Id. For instance, a declaratory judgment may not issue without an

action of the requesting party dependent on it. See id. ¶ 19 (collecting cases). Another instance

where a separation of powers question does not meet the jurisdictional requirements is when the

governor’s question “only concerns another branch of the government or . . . solely impacts

subordinate executive officers and agencies.” Id. ¶ 20.

[13] Here, the Governor asks whether the enacted legislation impinges on her Organic Act

powers and duties over quarantine. The Governor has issued executive orders for the quarantine

of incoming passengers and enabled DPHSS to issue quarantine rules and regulations. The

Governor’s question centers on her and the Executive Branch’s existing duties and exercise of

their power to fight the spread of COVID-19. This is not an instance when the question only

concerns another branch of government or solely impacts subordinate executive officers and

agencies. While we invited interested parties to brief the separation of powers issue because it In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 9 of 36

was raised within the context of a different certified question, this issue itself is proper subject

matter for declaratory judgment.

[14] Our declaratory judgment statute has two other requirements. “The declaratory

judgments may be issued only where it is a matter of great public interest and the normal process

of law would cause undue delay.” 7 GCA § 4104. These requirements are also met.

[15] Whether sections 19604 and 19605 infringe on the Governor’s Organic Act powers to

promulgate quarantine regulations is a matter of great public interest. “[P]ublic interest . . .

signifies an importance of the issue to the body politic, the community, in the sense that the

operations of the government may be substantially affected one way or the other by the issue’s

resolution.” In re Request of Governor Gutierrez II, 2002 Guam 1 ¶ 26 (quoting In re Request of

Governor Carl T.C. Gutierrez for a Declaratory Judgment as to Organicity of Guam Pub. L. 22-

42 (“In re Request of Governor Gutierrez I”), 1996 Guam 4 ¶ 4).

[16] This question has broad ranging impacts for all branches of government, the community,

and anyone traveling to Guam during a public health emergency. The Governor has a duty to

establish, maintain, and operate quarantine stations and promulgate quarantine regulations when

necessary. 48 U.S.C.A. § 1421g(a). Quarantine measures have been a part of the government’s

response to the COVID-19 public health emergency since the first cases were confirmed on the

island. Exec. Order No. 2020-04 at 1-2. Individuals subject to quarantine have challenged

quarantine orders issued by DPHSS in the Superior Court citing sections 19604 and 19605. See,

e.g., Ikei, SP0138-20/SP0141-20 (Finds. Fact & Concl. L. at 2). PDSC was appointed to

represent quarantined individuals. See Igros, SP0127-20 (Gen. Order Appointing Pub. Def.

Serv. Corp. Represent Persons in Quarantine & Entering Quarantine). DPHSS has an existing In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 10 of 36

governmental duty as the agency delegated by the Governor to develop and implement

quarantine policy. Exec. Order No. 2020-03 at 1; Exec. Order No. 2020-04 at 3. Three

interested parties and the Attorney General as amicus curiae submitted briefs to this court on the

powers of the Governor and the Executive Branch over quarantine and interpretations of sections

19604 and 19605. Resolving this separation of powers question significantly affects the

community and the operations of government. As this is a matter of great public interest, the

second jurisdictional requirement is met.

[17] The final jurisdictional requirement is that the normal processes of law would cause

undue delay. See 7 GCA § 4104. We analyze undue delay using a two-element test: “we must

(1) measure the delay relative to the time that would be consumed by litigating the issue through

the ‘normal process of law’ and (2) determine whether this delay is ‘excessive or inappropriate.’”

In re Request of I Maga’låhen Guåhan Eddie Baza Calvo Relative to the Interpretation &

Application of Organic Act Section 1423B & What Constitutes the Affirmative Vote of the

Members of I Liheslaturan Guåhan, 2017 Guam 14 ¶ 11 (citing In re Request of Governor

Gutierrez I, 1996 Guam 4 ¶ 7).

[18] In In re Request of Governor Gutierrez I, delay was not undue because a direct appeal

was pending from the Superior Court judgment in the request for declaratory judgment. 1996

Guam 4 ¶ 8. In In re Request of Governor Felix P. Camacho Relative to the Interpretation of

Section 11 of the Organic Act of Guam & the Education Facilities Construction Initiatives Act of

2001 (“In re Request of Governor Camacho III”), the anticipated comparative delay through the

normal processes of law was excessive or inappropriate given the needs and interest of the island

to expedite the resolution of questions over financing public schools. 2006 Guam 5 ¶ 10. We In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 11 of 36

find the unique circumstances here to constitute undue delay. Unlike In re Request of Governor

Gutierrez I, there is no pending direct appeal by DPHSS or by a quarantined individual of an

order issued by the Superior Court. Even an expedited appeal of such an order may be moot and

never reach substantive appellate review. The estimated difference in speed between reaching

these issues through the normal processes of law would be excessive or inappropriate relative to

an action under 7 GCA § 4104. Like in In re Request of Governor Camacho III, expedited

resolution of the issues here are in the interest of the island and travelers seeking entry into

Guam. Because litigating the issues through the normal processes of law would cause delay that

is excessive or inappropriate, the third requirement is met.

[19] Therefore, we clarify, the court has jurisdiction to issue a declaratory judgment on

whether statutory challenges to quarantine orders are permitted under 10 GCA §§ 19604 and

19605, and if so, how these sections are reconciled with the quarantine powers granted to the

Governor in the Organic Act.

III. STANDARD OF REVIEW

[20] “For cases brought before this court pursuant to our original jurisdiction, all issues are

determined in the first instance.” In re Request of Governor Camacho III, 2006 Guam 5 ¶ 12

(citing In re Request of Governor Gutierrez II, 2002 Guam 1 ¶ 8; In re Request of Governor

Felix P. Camacho Relative to the Interpretation & Application of Section 11 of the Organic Act

of Guam (“In re Request of Governor Camacho I”), 2003 Guam 16 ¶ 8, rev’d on other grounds,

Limtiaco v. Camacho, 549 U.S. 483 (2007)).

//

// In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 12 of 36

IV. ANALYSIS

[21] Although this litigation expanded after the Governor submitted her Reply Brief, that

expansion revealed a question central to the disposition of this matter. Before turning to the

questions certified in the December 31, 2020 Order and Scheduling Order, we must first

determine whether statutory challenges to quarantine orders are permitted under 10 GCA §§

19604 and 19605, and if so, how these sections are reconciled with the quarantine powers

granted to the Governor in the Organic Act. At the heart, this is a separation of powers issue.

See supra Part II. We address first whether the legislative enactment of sections 19604 and

19605 of the EHPA violate separation of powers principles by impinging on the Governor’s

Organic Act powers and duties over quarantine under 48 U.S.C.A. § 1421g(a).

A. Section 19604 Can Be Reconciled with the Quarantine Powers Granted to the Governor in the Organic Act, But Section 19605 Cannot

1. Separation of Powers Principles

[22] Under the Organic Act, the government consists of three separate but co-equal branches

of government. See 48 U.S.C.A. § 1421a (“The government of Guam shall consist of three

branches, executive, legislative, and judicial . . . .”). The applicability of the separation of

powers doctrine in Guam is evident in the language of the Organic Act and has long been

recognized by this court. See Villagomez-Palisson v. Superior Court (Laguana), 2004 Guam 13

¶ 14 (“This court has consistently held that the concept of separation of powers exists in

Guam.”); Hamlet v. Charfauros, 1999 Guam 18 ¶ 9 (“By its very language, therefore, the

Organic Act requires application of the constitutional doctrine of separation of powers to

government of Guam functions.” (quoting Taisipic v. Marion, 1996 Guam 9 ¶ 26)). In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 13 of 36

[23] As between the legislature and the executive, the separation of powers doctrine is

violated when “the Legislature has acted beyond its authority.” In re Request of I Mina’ Trentai

Dos Na Liheslaturan Guåhan Relative to the Use of Funds from the Tax Refund Efficient

Payment Trust Fund, 2014 Guam 15 ¶ 18. Invalid legislative actions “impinge upon the

Governor’s authority.” Id. This court adopted the U.S. Supreme Court’s framework in Nixon v.

Administrator of General Services, 433 U.S. 425, 443 (1977), for evaluating separation of

powers challenges. See People v. Perez, 1999 Guam 2 ¶ 17, overruled on other grounds by

People v. Shimizu, 2017 Guam 11. “[T]wo separate elements must be evaluated: (1) whether the

statutory provision prevents the accomplishment of constitutional functions and (2) if so,

whether the disruptive impact is justified by any overriding constitutional need.” Id.

[24] Separation of powers issues are addressed on a case-by-case basis and “must begin with

the general rule that legislative enactments are presumed to be constitutional.” In re Request of

Governor Gutierrez II, 2002 Guam 1 ¶ 41. The party alleging that a statute is unconstitutional

bears the burden of proof. Id.

[25] The Governor argues 48 U.S.C.A. § 1421g(a) grants her “ultimate authority” over

quarantine. Reply Br. at 4. The Legislature argues against an interpretation of § 1421g(a) that

suggests the Governor has an enhanced quarantine power. Rather, the Legislature contends the

Governor’s power in § 1421g(a) is subject to the laws of Guam and the Organic Act grants

legislative power and authority to the Legislature of Guam. Legislature’s Br. at 6 (Apr. 6, 2021).

Therefore, the Legislature argues it has concurrent police and lawmaking power to legislate

quarantine. Id. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 14 of 36

[26] The Governor counters that the Legislature’s Organic Act powers must be exercised

consistently with other provisions of the Organic Act, and the Legislature cannot enact laws in

derogation of § 1421g(a). Suppl. Consol. Reply Br. at 2 (Apr. 26, 2021). The Governor offers

the 1986 Amendment to § 1421g(b) in support of her interpretation of § 1421g(a) that ultimate

quarantine authority vests in her. Id. at 22-26. Specifically, the Governor cites the legislative

history of the amendment to § 1421g(b), which changed “governor” to “government.” Id. at 22-

23. This change provided the government of Guam authority to organize its education system as

opposed to that authority residing singularly with the governor. See S. Rep. No. 99-236, at 4

(1986) as reprinted in 1986 U.S.C.C.A.N. 1843, 1845. Unlike § 1421g(b), the subsection at issue

here—§ 1421g(a)—has never been amended. Thus, the Governor argues § 1421g(a) grants her

ultimate authority over public health services and quarantine. Suppl. Consol. Reply Br. at 18,

26.

[27] We agree with the Governor’s interpretation of “subject to the laws of Guam” in §

1421g(a)—the phrase does not describe ordinary separation of powers doctrine. Under § 1423a,

the Legislature has a general grant of authority to legislate quarantine absent a more specific

grant elsewhere in the Organic Act. See 48 U.S.C.A. § 1423a (“The legislative power of Guam

shall extend to all rightful subjects of legislation not inconsistent with the provisions of this

chapter and the laws of the United States applicable to Guam.”). Contrastingly, the Governor

has enumerated powers to establish, maintain, and operate quarantine stations and promulgate

quarantine regulations. 48 U.S.C.A. § 1421g(a). And as we stated, “a narrower, more specific

provision of a statute takes precedence over a more general provision of the same statute.”

Camacho v. Estate of Gumataotao, 2010 Guam 1 ¶ 19 (citing Rose v. State, 123 P.2d 505, 512 In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 15 of 36

(Cal. 1942)). The specific enumerated quarantine powers granted to the Governor in § 1421g(a)

control over a general grant of power to the Legislature in § 1423a. Thus, we are persuaded by

the Governor’s argument that “subject to the laws of Guam” in § 1421g(a) cannot be read as

ordinary separation of powers principles because doing so renders the phrase surplusage.

Accordingly, the Legislature may not enact laws in derogation of the Governor’s quarantine

authority in § 1421g(a). See In re Request of Governor Camacho I, 2003 Guam 16 ¶ 15 n.5.

2. History of the Organic Act

[28] To interpret § 1421g(a) and the grant of executive power it contains, we must look back

further than the 1986 amendments to the Organic Act to the evolution of self-governance in

Guam since becoming an unincorporated territory of the United States, which it remains to this

day. See 48 U.S.C.A. § 1421a.

[29] The United States gained possession of Guam in 1898 from Spain by the Treaty of Peace

Between the United States of America and the Kingdom of Spain (“Treaty of Paris”). Treaty of

Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754 (1899). The United States then installed a

government controlled by the Navy and appointed a Naval governor as the head of government.

See In re Request of Governor Felix P. Camacho Relative to the Interpretation & Application of

Sections 6 & 9 of the Organic Act of Guam (“In re Request of Governor Camacho II”), 2004

Guam 10 ¶¶ 19, 21 (citing Arnold H. Leibowitz, Defining Status: A Comprehensive Analysis of

United States Territorial Relations 316-18 (1989); Paul Carano & Pedro C. Sanchez, A Complete

History of Guam 347 (1964)).

[30] In 1917, the Guam Congress was created to make recommendations to the Naval

governor. See id. ¶ 20. In reality, however, the Naval governor “retained virtually all power In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 16 of 36

regarding the administration of Guam.” Id. ¶ 21 (citing Stanley K. Laughlin, Jr., The Law of

United States Territories and Affiliated Jurisdictions 403 (1995); Carano & Sanchez, supra, at

229). In 1947, after the United States recaptured Guam following Japanese occupation in World

War II, Acting Secretary of the Navy John L. Sullivan issued a proclamation directing that only

the Guam Congress could change existing law, implicitly rejecting unilateral amendment through

executive order by the Naval governor. Id. ¶¶ 19, 22 (citing Carano & Sanchez, supra, at 347).

This proclamation “was the first substantive grant of power to non-appointed, non-naval

officials.” Id. ¶ 22.

[31] The shift away from Naval governance toward civil governance continued when

President Harry S. Truman transferred administration of Guam to the Department of the Interior

and appointed the first civilian governor in 1949. Id. ¶ 23 (citing Carano & Sanchez, supra, at

353, 355). A year later, “a civil government in Guam became a reality, when the passage of the

Organic Act of Guam created three branches of government.” Id. ¶ 24. From the time when the

United States gained possession of Guam in 1898 and until passage of the Organic Act in 1950,

the political status of Guam was atypical “with a military governor holding all legislative,

executive, and judicial authority.” Jon M. Van Dyke, The Evolving Legal Relationships Between

the United States and Its Affiliated U.S.-Flag Islands, 14 U. Haw. L. Rev. 445, 488 (1992).

[32] “Under the Organic Act, the position of the civilian Governor mirrored its predecessor

under the United States Navy and was given broad powers.” In re Request of Governor

Camacho II, 2004 Guam 10 ¶ 25. Despite the passage of the Organic Act, the governor of Guam

continued to be appointed by the President of the United States. Id. ¶ 27. “Not until 1968 did

the people of Guam exercise their voices in choosing the executive leaders of their island.” Id. ¶ In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 17 of 36

28 (citing Guam Elective Governor Act, Pub. L. 90-497 (1968)). The elected governor

continued to enjoy broad executive powers. See id. ¶ 29. In 1998, the Organic Act was amended

to clarify legislative power. See Pub. L. 105-291, 105th Cong., § 4 (1998) (enacted and codified

at 48 U.S.C.A. §§ 1421g, 1423a).

[33] It is against this historical backdrop we recognize the governor’s executive power in 48

U.S.C.A. § 1421g(a). This section of the Organic Act—which specifically mandates the

governor establish, maintain, and operate quarantine stations and promulgate quarantine

regulations, when necessary—has never been amended. Section 1421g(a) was enacted when the

power of the legislature and judiciary were not as robust as the present day, and the appointed

governor enjoyed more power than at present. The parties do not dispute this is a unique grant of

power specifically bestowed on the governor of Guam. But it is more than unique; it is a

“command of the Organic Act” of “ultimate responsibility” to the governor. Bordallo v.

Baldwin, 624 F.2d 932, 934 (9th Cir. 1980).

3. Ninth Circuit Jurisprudence

[34] “The Organic Act serves the function of a constitution for Guam.” Haeuser v. Dep’t of

L., Gov’t of Guam, 97 F.3d 1152, 1156 (9th Cir. 1996). “In general, it provides for the three

branches of government consistent with the constitutional structure of the United States and the

powers of each branch flow from, and are limited by the Organic Act.” Baldwin, 624 F.2d at

934. The Organic Act not only serves as the constitution of Guam, it is also a federal statute.

“Ninth Circuit cases that address Organic Act issues will be followed by this court, insofar as In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 18 of 36

such cases are reasonably supported by law.”2 Underwood v. Guam Election Comm’n, 2006

Guam 17 ¶ 35. As the Ninth Circuit’s decision in Bordallo v. Baldwin, 624 F.2d 932 (9th Cir.

1980)—interpreting the governor’s power under § 1421g(a)—is reasonably supported by law,

and no party has argued why it should not be followed, we will follow Baldwin’s interpretation

of that section.

[35] The Governor’s power under § 1421g(a) is:

Subject to the laws of Guam, the Governor shall establish, maintain, and operate public-health services in Guam, including hospitals, dispensaries, and quarantine stations, at such places in Guam as may be necessary, and [s]he shall promulgate quarantine and sanitary regulations for the protection of Guam against the importation and spread of disease.

48 U.S.C.A. § 1421g(a).

[36] In Baldwin, the legislative enactment challenged as violating separation of powers

principles effectively eliminated all discretion over appointments to the Guam Memorial

Hospital’s Board of Trustees by the governor and required the governor to appoint persons

designated by private organizations. 624 F.2d at 933. There, the legislature argued the law was

organic because the governor’s “general appointive powers as set forth in Section 1422c(a)”

were subject to legislative action and the governor’s “specific responsibility with respect to

hospitals is restricted by the inclusion in Section 1421g(a) of the phrase ‘subject to the laws of

Guam.’” Id. at 934. But the legislature “failed to recognize that legislative power is limited by

2 As we explained in Underwood: [B]ecause the Supreme Court of Guam is now the final arbiter of questions arising through the jurisdiction of the courts of Guam (short of final certiorari review by the United States Supreme Court), we recognize our authority to depart from Ninth Circuit cases interpreting the Organic Act of Guam only in the rare instance where we believe that such cases are unsupported by law. 2006 Guam 17 ¶ 35. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 19 of 36

Section 1423a to subjects ‘not inconsistent with the provisions of this chapter.’” Id. The Ninth

Circuit held the law violated separation of powers principles by “tak[ing] over the entire power

to establish, maintain and operate the Hospital by dictating who the governing trustees shall be.”

Id. The legislature “negate[d] the command of the Organic Act that the ultimate responsibility

for the governance of the Hospital be in the Governor.” Id.

[37] Here, the Governor argues she has more power over quarantine than over hospitals

because § 1421g(a) mandates she promulgate quarantine regulations together with her duties to

establish, maintain, and operate quarantine stations and hospitals. We agree. The Governor’s

power over quarantine is broader than her power over hospitals. See Baldwin, 624 F.2d at 933-

34.

[38] Aside from Baldwin, the Ninth Circuit has interpreted § 1421g(b) and the governor’s

Organic Act powers over public education. In Brown v. Civil Service Commission, the Ninth

Circuit interpreted the savings clause “subject to the laws of Guam” in § 1421g(a) to apply to §

1421g(b), dismissing the argument that the governor had “exclusive” power over the school

system. 818 F.2d 706, 709 (9th Cir. 1987). Here, the Legislature argues the determination in

Brown applies to the Governor’s quarantine power in § 1421g(a) and urges us to find that the

Governor’s quarantine power is subject to concurrent legislative authority. Legislature’s Br. at

13-14. But even without determining that the governor’s power over public education was

nonexclusive, the Ninth Circuit could have reached the same result—that the disputed executive

action in Brown infringed on the legislature’s Organic Act power because § 1421g(b) grants the

governor general authority over public education. See Brown, 818 F.2d at 709-10.

Contrastingly, the legislature has a specific grant of authority to establish a merit system for In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 20 of 36

government service, and in Brown, the governor negated the Organic Act’s specific grant of

authority to the legislature by establishing a merit system for Department of Education

employees. Id.

[39] The Ninth Circuit concluded the same in Nelson v. Ada, 878 F.2d 277, 280 (9th Cir.

1989) (“In Brown, . . . the Organic Act of Guam itself authorized the Guam legislation in

question.”). There, the Ninth Circuit stated, “48 U.S.C. § 1422c(a) provided expressly for

legislative establishment of a merit system under which, ‘as far as practicable,’ appointments and

promotions were to be made.” Id. (citing Brown, 818 F.2d at 709-10). These three Ninth Circuit

cases stand for the proposition that in separation of powers conflicts, the government actor with

the more specific grant of power in the Organic Act prevails over the actor with a general grant

of power. Here, as between the Legislature and the Governor, the Governor has the more

specific grant of power over quarantine in the Organic Act. Thus, Ninth Circuit precedent

supports interpreting the separation of powers dynamic over quarantine as weighted toward the

Governor. Besides Ninth Circuit precedent, the plain language of § 1421g(a) and the history of

the Organic Act also support the determination that the Governor’s quarantine policies, rules,

and regulations take precedence over legislative enactments of quarantine law.3

4. The Perez Test

[40] Because of her authority under 48 U.S.C.A. § 1421g(a), the Governor argues that sections

19604 and 19605 of the EHPA are inorganic and void for violating separation of powers. The

Governor contends these sections encroach on her Organic Act power over quarantine by

3 The Governor’s executive orders, policies, rules, and regulations on quarantine are subject to the Constitution and Jacobson limitations. See infra Part IV.B (discussing standard of review for constitutional challenges). In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 21 of 36

dictating quarantine rules and policy. To resolve this issue, we analyze sections 19604 and

19605 in turn under the two-part test adopted in People v. Perez, 1999 Guam 2. First, “whether

the statutory provision prevents the accomplishment of constitutional functions,” and second, “if

so, whether the disruptive impact is justified by any overriding constitutional need.” Perez, 1999

Guam 2 ¶ 17.

a. Section 19604 does not prevent the Governor from accomplishing her constitutional functions

[41] Section 19604 is titled “Isolation and Quarantine.” 10 GCA § 19604. This section

authorizes DPHSS to isolate or quarantine an individual or groups of individuals, set rules, and

issue orders. Id. § 19604(a). This section also sets out eight conditions and principles the public

health authority must follow when isolating or quarantining individuals or groups. Id. §

19604(b).

[42] When viewed as general principles for DPHSS to follow when isolating or quarantining

individuals, section 19604 does not impinge on the Governor’s quarantine duties in § 1421g(a).

Section 19604 describes quarantine and quarantine-related principles but does not establish or

define procedures or methods to accomplish those goals. Put differently, section 19604 does not

generate the quarantine policy itself. The Legislature is not mandating or issuing directives to

DPHSS or the Governor to implement. Rather, the Legislature presents a guide for DPHSS to

use when creating specific quarantine policies. Unlike in Baldwin, the Legislature has not “taken

over the entire power” to establish, maintain, and operate quarantine stations and promulgate

quarantine regulations. See 624 F.2d at 934-35. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 22 of 36

[43] The Attorney General as amicus curiae suggests that section 19604 is organic when read

as intelligible principles—as standards that guide DPHSS rather than quarantine regulations

themselves. And the Governor conceded during oral argument that section 19604 would be

organic when read as broad standards. See Oral Argument at 10:25:21–10:25:39, 12:05:08–

12:06:28 (May 7, 2021). As the U.S. Supreme Court recognized, there is a long standing

principle of statutory construction that “an Act of Congress ought not to be construed to violate

the Constitution if any other possible construction remains available.” NLRB v. Cath. Bishop of

Chi., 440 U.S. 490, 500 (1979); see also Gilmore v. California, 220 F.3d 987, 997-98 (9th Cir.

2000). When read as broad, general principles, section 19604 does not prevent the Governor

from accomplishing her quarantine duties mandated by the Organic Act. Because we answer the

first step of the Perez test in the negative, we need not continue to the second step of the

analysis. We now turn to the certified question asking how section 19604 is reconciled with the

quarantine powers granted to the Governor in the Organic Act. Our answer is that by

interpreting section 19604 as broad standards and general principles, the law does not

impermissibly encroach on the Governor’s quarantine authority. The Legislature, therefore, has

not exceeded its power, and section 19604 does not violate separation of powers.

[44] Because we interpret section 19604 as broad standards and general principles, section

19604 does not permit statutory challenges to quarantine orders because it contains no

substantive regulations, nor does it confer legal rights to individuals subject to quarantine.

Section 19604 is not intended to be used by courts as DPHSS criteria for quarantine when

reviewing challenges to individual quarantine orders. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 23 of 36

b. Section 19605 prevents the Governor from accomplishing her constitutional functions

[45] Section 19605 is titled “Procedures for Isolation and Quarantine.” 10 GCA § 19605.

This section sets out procedures the public health authority must follow when isolating or

quarantining individuals or groups. Id. The interested parties and amicus curiae extensively

briefed the following subsections for organicity: (1) section 19605(a)(4) (requiring that the

public health authority obtain a court order for isolation or quarantine beyond ten days for those

quarantined without notice); (2) section 19605(b)(5) (setting standards for a court to apply when

considering a petition for isolation or quarantine); (3) section 19605(b)(5)(ii) (setting

requirements for the court order authorizing isolation or quarantine); and (4) section 19605(c)(1)-

(2) (authorizing procedures for release or remedies for breaches under the EHPA).

[46] Unlike the general language used in section 19604 to ascribe broad principles for

quarantine and isolation, section 19605 directs DPHSS to follow specific procedures to lawfully

isolate or quarantine individuals.

[47] For example, after ten days of isolation or quarantine, DPHSS can continue to isolate or

quarantine an individual without notice only by petition to the Superior Court. 10 GCA §

19605(a)(4). In enacting this requirement, the Legislature has predetermined the length of an

initial quarantine. This legislative determination infringes on the power of the executive to

execute quarantine regulations by mandating that DPHSS obtain a court order to keep an

individual in quarantine past the ten-day period. The EHPA is a general statute and not specific

to COVID-19, but the ongoing endorsement of the Centers for Disease Control and Prevention

for a fourteen-day quarantine period highlights the legislative interference created by the ten-day In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 24 of 36

limit. See Req. Declaratory J. at Ex. 5 (When to Quarantine, Centers for Disease Control and

Prevention, Dec. 10, 2020); see also When to Quarantine, Centers for Disease Control and

Prevention (Mar. 12, 2021), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-

sick/quarantine.html (last visited June 29, 2021). To comply with the EHPA, DPHSS must

petition a court for an order to quarantine every incoming traveler beyond ten days. This

provision removes essential decision-making power from DPHSS, and thereby the Governor,

over the length of quarantine during the COVID-19 pandemic.

[48] Another example of infringement is that the court order for quarantine must “include any

conditions necessary to ensure that isolation or quarantine is carried out within the stated

purposes and restrictions of this Chapter.” 10 GCA § 19605(b)(5)(ii)(cc). The Legislature

mandates the Superior Court to enact the Legislature’s quarantine policies contained within the

statute and ensure DPHSS’s petition complies should the two conflict. Put differently, the

Superior Court must enforce the Legislature’s quarantine determinations over those of DPHSS.

This is legislative overreach into policy decisions over quarantine regulation that the Organic Act

specifically grants to the Governor and thereby DPHSS.

[49] The Attorney General as amicus curiae suggests section 19605 creates procedures for

judicial review but is not a substantive regulatory provision. Att’y Gen.’s Br. at 21 (Apr. 6,

2021). We are not persuaded that section 19605 is limited to mere procedure. Section 19605

creates three substantive rights. First, the right of quarantined individuals to petition the Superior

Court for release. 10 GCA § 19605(c)(1). Second, remedies for quarantined individuals for

breach of quarantine conditions. 10 GCA § 19605(c)(2). And third, it provides unrepresented In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 25 of 36

individuals with legal counsel. 10 GCA § 19605(e)(1). This is not to say that these subsections

are unimportant to protect civil liberties—only that they are more substantive than procedural.

[50] As in Baldwin, the Governor has a specific Organic Act responsibility to establish,

maintain, and operate quarantine stations and the added responsibility to promulgate quarantine

regulations. See 48 U.S.C.A. § 1421g(a). The Legislature does not have a specific grant of

authority over quarantine law but has a general police power limited to “subjects of legislation

not inconsistent with the provisions of [the Organic Act].” Id. § 1423a. While Baldwin

recognizes that the legislature can, within the scope of its own Organic Act authority, enact

quarantine law, those enactments cannot overrule the governor’s regulations. See 624 F.2d at

934. Section 19605, like the challenged law in Baldwin, negates the command of the Organic

Act that quarantine authority ultimately vests in the Governor. Section 19605 intrudes too far

into the Governor’s power to operate quarantine stations and regulate quarantine by dictating

substantive quarantine decisions. Section 19605 effectively substitutes the Legislature’s policies

for the Governor’s and empowers the courts to do the same. This is impermissible infringement

because the plain language of the Organic Act, the history of the Organic Act and the powers of

the Governor, and Ninth Circuit precedent all support the Governor’s position that her quarantine

policies must take precedence over the Legislature’s. Section 19605 therefore prevents the

Governor from accomplishing her Organic Act responsibilities over quarantine.

c. The disruptive impact of section 19605 is not justified by any overriding constitutional need

[51] Because section 19605 prevents the Governor from accomplishing her constitutional

functions, we now turn to the second step of the Perez test to determine whether the disruptive In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 26 of 36

impact of the law is justified by any overriding constitutional need. See Perez, 1999 Guam 2 ¶

17. We have performed the “overriding constitutional need” analysis twice before. In

Villagomez-Palisson v. Superior Court (Laguana), 2004 Guam 13, this court held the Mandatory

Medical Malpractice Arbitration Act does not violate the separation of powers doctrine because

the overriding constitutional need for affordable health care justified “minimal infringement on

the power of the judiciary to review the arbitrator’s award.” 2004 Guam 13 ¶¶ 31, 34. By

contrast, we determined that Appendix C of the government of Guam’s budget for fiscal year

2002 contained in Guam Public Law 26-35 violated the separation of powers doctrine because it

prevented the governor from accomplishing his Organic Act appropriation duties, and the

legislature did not articulate an “overriding constitutional need” to usurp that power. In re

Request of Governor Gutierrez II, 2002 Guam 1 ¶¶ 2, 50.

[52] The circumstances here are not analogous to those in Villagomez-Palisson because the

disruptive impact created by section 19605 is not minimal. See supra Part IV.A.4.ii. And here,

like in In re Request of Governor Gutierrez II, the legislature does not articulate any overriding

constitutional need to justify the infringement created by section 19605.

[53] The primary goal of the EPHA is to protect the health and safety of Guam during a public

health emergency. See 10 GCA § 19102. The EPHA lists ten legislative findings; eight of those

findings focus on the government’s response to public health threats and exercising emergency

health powers. See id. Of the EHPA’s seven listed purposes, six describe government actions to

control serious health threats. See id. § 19103. While the EHPA also attempts to balance

individual liberties with the “ability to respond, rapidly and effectively, to potential or actual

public health emergencies,” the EHPA is primarily a tool to combat dangers to public health. Id. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 27 of 36

§ 19102(e); see also id. § 19103(f) (stating a purpose of EHPA is “to ensure the needs of infected

or exposed persons are properly addressed to the fullest extent possible, given the primary goal

of controlling serious health threats” (emphasis added)).

[54] The legislative history of the EHPA also supports this interpretation. The EHPA was

passed into law in 2003. Guam Pub. L. 26-173 (Jan. 5, 2003) (codified at 10 GCA § 19101 et

seq.). The act was passed to empower the government to respond to the spread of communicable

diseases by conferring specific emergency powers to the governor and the public health

authority. Id. § 1. The legislative intent of the EHPA states that if emergency powers are

exercised, “the civil rights, liberties and needs of infected or exposed persons will be protected to

the fullest extent possible, consistent with the primary goal of controlling serious health threats.”

Id. (emphasis added). The legislative history reiterates the primary goal of the EPHA is to

protect Guam against public health threats, while a lesser goal is to protect individual rights and

liberties. Furthermore, voiding section 19605 does not shut the doors of the courthouse to

aggrieved quarantined individuals. Quarantined individuals can challenge a quarantine order

under constitutional claims, by writ of habeas corpus, or under the theory that agency regulations

or decisions are arbitrary, capricious, or an abuse of discretion. See infra Part IV.B (discussing

constitutional challenges); infra Part IV.C (discussing court’s inherent power of review). Thus,

the Legislature has not articulated an overriding constitutional need to usurp and infringe on the

Governor’s quarantine authority under § 1421g(a).

[55] Because the Legislature has not articulated an overriding constitutional need, we answer

the certified question of whether section 19605 can be reconciled with the quarantine powers

granted to the Governor in the Organic Act in the negative—it cannot be reconciled. The In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 28 of 36

Legislature has exceeded its power, and section 19605 is inorganic and void. Accordingly, the

second part of the certified question is answered in the negative—individuals cannot challenge

their quarantine orders under section 19605.

[56] In summary, we hold section 19604 does not violate separation of powers doctrine.

Because section 19604 contains only broad principles, it is not a basis for a statutory challenge to

a quarantine order. Section 19605 is not a basis for statutory challenges to a quarantine order

because it is inorganic and void for violating separation of powers doctrine.

B. Quarantine Orders May Be Challenged on Constitutional Grounds

[57] We now turn to the first of two questions we initially certified: May quarantine orders be

challenged on constitutional grounds? If yes, what level of scrutiny should be applied to the

court’s review, whether rational, intermediate, or strict?

[58] The majority of the courts, when faced with challenges to executive emergency health

measures implemented in response to the COVID-19 pandemic, apply the framework established

by the United States Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11, 25-27, 31

(1905). See Carmichael v. Ige, 470 F. Supp. 3d 1133, 1142 (D. Haw. 2020) (collecting cases);

Page v. Cuomo, 478 F. Supp. 3d 355, 366 (N.D.N.Y. 2020) (“As relevant here, courts across the

country have nearly uniformly relied on Jacobson’s framework to analyze emergency public

health measures put in place to curb the spread of coronavirus.”); Prof’l Beauty Fed’n of Cal. v.

Newsom, Case No. 2:20-cv-04275-RGK-AS, 2020 WL 3056126, at *5 (C.D. Cal. June 8, 2020)

(collecting cases). The standard in Jacobson is that challenges to public health policy statutes

and regulations fail unless the policy can be shown to have no real or substantial relation to In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 29 of 36

public health or constitutes a plain, palpable invasion of plaintiff’s rights. Jacobson, 197 U.S. at

31.

[59] But when “the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they

must satisfy ‘strict scrutiny,’ and this means they must be ‘narrowly tailored’ to serve a

‘compelling’ state interest.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67

(2020) (quoting Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993)).

“In cases implicating this form of ‘strict scrutiny,’ courts nearly always face an individual’s

claim of constitutional right pitted against the government’s claim of special expertise in a matter

of high importance involving public health or safety.” S. Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 718 (Mem.) (2021). “Stemming the spread of COVID–19 is

unquestionably a compelling interest,” but to pass constitutional strict scrutiny, the challenged

regulation must also be “narrowly tailored.” Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 67.

[60] As the global COVID-19 pandemic stretches well beyond the one-year mark, the

Supreme Court has recognized that the degree of deference to the executive branch’s regulations

aimed at slowing the transmission of the novel coronavirus may shift as time passes and more is

known about the disease. See id. at 70 (Gorsuch, J., concurring); Calvary Chapel Dayton Valley

v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (Mem.) (Alito, J., dissenting). In his concurrence in

Roman Catholic Diocese of Brooklyn, Justice Gorsuch takes aim at Chief Justice Robert’s oft-

cited concurrence in South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (Mem.)

(2021), where the Chief Justice quoted Jacobson to justify broad deference to the decisions of

elected public health officials. See Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch,

J., concurring). Justice Gorsuch uses the passage of time, in part, to distinguish between In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 30 of 36

upholding the challenged regulation in South Bay United Pentecostal Church in March 2020 and

enjoining the challenged regulation in Roman Catholic Diocese of Brooklyn in November 2020:

At that time, [when the concurrence in South Bay United Pentecostal Church was issued,] COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

Id.4

[61] Four months earlier, Justice Alito had the same concern, stating: “[A]t the outset of an

emergency, it may be appropriate for courts to tolerate very blunt rules. . . . [But] [a]s more

medical and scientific evidence becomes available, and as States have time to craft policies in

light of that evidence, courts should expect policies that more carefully account for constitutional

rights.” Calvary Chapel Dayton Valley, 140 S. Ct. at 2605 (Mem.) (Alito, J., dissenting).

[62] This is the status of Supreme Court jurisprudence about Jacobson deference and its

continued application. As these rules apply to constitutional challenges to the Governor’s

executive orders and regulations over quarantine including quarantine orders issued by DPHSS,

we answer the certified question in the affirmative—quarantine orders may be challenged on

constitutional grounds. Constitutional challenges to neutral and generally applicable laws and

regulations to protect public health are analyzed under the Jacobson standard. If the challenged

law or regulation is not neutral or generally applicable, it is subject to strict scrutiny.

4 The Superior Court’s analysis of Jacobson deference recognized this shift toward more probing inquiry of executive regulations as time and knowledge increase. See Ikei, SP0138-20/SP0141-20 (Finds. Fact & Concl. L. at 13-15). In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 31 of 36

C. The Court Has Inherent Power to Review Agency Action

[63] We now turn to the final certified question: May a court modify a quarantine order issued

by DPHSS? If yes, under what circumstances? If yes, does such modification impinge on the

Governor’s powers and duties to quarantine and protect against the spread of disease and

interfere with operations of the Executive Branch?

[64] The Organic Act delineates the jurisdiction and powers of the Judiciary of Guam under

48 U.S.C.A. § 1424-1. The Superior Court of Guam “shall have such original and appellate

jurisdiction over all causes in Guam as the laws of Guam provide” except jurisdiction conferred

to the District Court of Guam. 48 U.S.C.A. § 1424-1(d). The Supreme Court of Guam is the

highest court and has general appellate jurisdiction, specific original jurisdiction, and supervisory

jurisdiction. Id. § 1424-1(a)(1)-(7). The Supreme Court also has “jurisdiction to issue all orders

and writs in aid of its appellate, supervisory, and original jurisdiction.” Id. § 1424-1(a)(3).

Because the Organic Act entrusts the protection of people’s rights to the judiciary, it has the

distinct role of interpreting the law. See Marbury v. Madison, 5 U.S. 137, 177 (1803).

[65] The courts of Guam also have the common law power to review agency actions.

Gutierrez v. Guam Election Comm’n, 2011 Guam 3 ¶ 18 (“[W]e are able to review the action in

the instant case under our common law authority to review agency actions.”). This court adopted

“the common law position exemplified by Bodinson Manufacturing, that all of Guam’s courts

retain the general ability to review agency actions taken by agencies and to ‘annul or restrain

administrative action already taken which is in violation of law’ when such is appropriate.” Id. ¶

19 (quoting Bodinson Mfg. Co. v. Cal. Emp. Comm’n, 109 P.2d 935, 941 (Cal. 1941)). The

power is rooted in the court’s jurisdiction and authority to issue writs, see Bodinson Mfg., 109 In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 32 of 36

P.2d at 941, which are granted to both the Superior Court and the Supreme Court of Guam, see

48 U.S.C.A. § 1424-1(a)(3), (d); see also 7 GCA § 31401 (2005). Thus, the Superior Court and

the Supreme Court have the common law power to review agency actions and annul or restrain

any agency action in violation of the law.

[66] Other jurisdictions refer to the court’s “inherent” power or authority to review

administrative decisions for arbitrariness or capriciousness. See Truitt v. Bd. of Pub. Works, 221

A.2d 370, 380 (Md. 1966) (“This Court has consistently exercised its inherent power to review

actions of administrative agencies alleged to be arbitrary or capricious even if there is no express

statutory authority for such review.”); Residents Opposed to Kittitas Turbines v. State Energy

Facility Site Evaluation Council (EFSEC), 197 P.3d 1153, 1163 (Wash. 2008) (en banc) (“While

the constitution does not expressly provide for appellate jurisdiction of agency action in superior

court, this court has recognized that the superior courts have inherent authority to review

administrative decisions for arbitrary and capricious action under the discretionary writ of

certiorari.”); In re Wright, 46 S.E.2d 696, 698 (N.C. 1948) (“The court has inherent authority to

review the discretionary action of any administrative agency, whenever such action affects

personal or property rights, upon a prima facie showing, by petition for a writ of certiorari, that

such agency has acted arbitrarily, capriciously, or in disregard of law.”).

[67] Given the specific grant of power and authority to the Governor in the Organic Act, her

quarantine policies and those implemented by DPHSS, as the Public Health Authority through

the EHPA, are afforded deference. Most courts across the county recognize that in times of

public health emergencies, the judgments of politically accountable officials are granted

deference. See Marshall v. United States, 414 U.S. 417, 427 (1974) (stating that when those In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 33 of 36

officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their

latitude “must be especially broad”); see also Bayley’s Campground Inc. v. Mills, 463 F. Supp.

3d 22, 32 (D. Me. 2020), recons. denied, No. 2:20-cv-00176-LEW, 2020 WL 3037252 (D. Me.

June 5, 2020), and aff’d, 985 F.3d 153 (1st Cir. 2021) (“[W]hen one weighs competing interests

in the balance, the presence of a major public health crises is a very heavy weight indeed and

scientific uncertainties about the best response will afford the state some additional leeway to err

on the side of caution . . . .”); Carmichael, 470 F. Supp. 3d at 1143 (“[T]he judiciary may not

‘second-guess the state’s policy choices in crafting emergency public health measures.’”

(quoting In re Rutledge, 956 F.3d 1018, 1029 (8th Cir. 2020))); Chambless Enters., LLC v.

Redfield, --- F. Supp. 3d ---, Civil Action No. 3:20-cv-01455, 2020 WL 7588849, at *15 (W.D.

La. Dec. 22, 2020) (collecting cases).

[68] The courts have their role to play in our system of checks and balances even during a

public health crisis. “As the Supreme Court also stated in Jacobson, courts have the authority to

intervene when political leaders attempting to protect the public against an epidemic act in ‘an

arbitrary, unreasonable manner’ or in a way that goes ‘far beyond what [is] reasonably

necessary.’” Elkhorn Baptist Church v. Brown, 466 P.3d 30, 35 (Or. 2020) (quoting Jacobson,

197 U.S. at 28). The Constitution “entrusts the protection of the people’s rights to the Judiciary .

. . . Deference, though broad, has its limits.” S. Bay United Pentecostal Church, 141 S. Ct. at

717 (Roberts, C.J., concurring).

[69] Based on these principles, the jurisdiction and authority to issue writs provide the courts

with inherent power to review agency regulations and agency decisions for arbitrariness,

capriciousness, or abuse of discretion. We hold that even without a statutory cause of action In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 34 of 36

within the EHPA, the courts of Guam have the inherent common law power to review the agency

actions of DPHSS acting as the Public Health Authority.

[70] The Governor’s Organic Act power and authority over quarantine are broad, but not

absolute. The Governor conceded in oral argument that her interpretation of her Organic Act

powers over quarantine does not place her actions above the law or beyond the reach of the

courts. See Oral Argument at 10:41:08–10:41:20, 12:07:01–12:07:20 (May 7, 2021). Her

concession is apt. Section 1421g(a) begins with the phrase “subject to the laws of Guam.” 48

U.S.C.A. § 1421g(a). And because “[a] statute should be construed to give effect to all of its

provisions so that no part would be superfluous or insignificant,” Macris v. Richardson, 2010

Guam 6 ¶ 15, the judicial branch must ensure other branches of government do not act beyond

the law. See also Washington Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16 (1879) (“We are not at

liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule

of statutory construction that significance and effect shall, if possible, be accorded to every

word.”).

[71] The courts have inherent power to review quarantine regulations and orders issued by

DPHSS for arbitrariness, capriciousness, or abuse of discretion. This standard of review reflects

the deference to elected officials and the specific grant in the Organic Act to promulgate

quarantine regulations in times of public health crises and does not encroach on the Governor’s

Organic Act duties.

[72] The court’s power to review and order compliance with the law is not a “modification” of

a DPHSS order because the court is not revising or editing a DPHSS order or substituting its

policy decisions into a DPHSS order. The exercise of the court’s inherent power of review over In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 35 of 36

agency actions is a judicial function and does not itself generate policy or regulations. Judicial

review over the actions of DPHSS therefore does not impinge on the Governor’s powers and

duties under 48 U.S.C.A. § 1421g(a). See Marbury, 5 U.S. at 177.

V. CONCLUSION

[73] In the midst of the global COVID-19 pandemic, the Governor filed a Request for

Declaratory Judgment to interpret her quarantine powers in the Organic Act relative to the scope

of judicial review over statutory challenges to quarantine arguably contained within the EHPA.

After diligent and extensive briefing and vigorous advocacy on behalf of the Governor, PDSC,

DPHSS, the Legislature, and the Attorney General of Guam, we answer the certified questions as

follows:

[74] Section 19604 does not violate separation of powers doctrine and is a valid exercise of

legislative power. Section 19605 is inorganic and void because it violates separation of powers

doctrine by encroaching on the Governor’s Organic Act authority over quarantine under 48

U.S.C.A. § 1421g(a). There are no explicit statutory challenges to quarantine orders in the

EHPA because section 19604 does not create a substantive right. Rather, section 19604 is a set

of broad principles enacted to guide the Governor and DPHSS in promulgating quarantine policy

and regulation.

[75] Quarantine orders may be challenged on constitutional grounds. Neutral and generally

applicable laws and regulations to protect public health are analyzed under the Jacobson

standard. If a challenged law or regulation is not neutral or generally applicable, it is subject to

strict scrutiny. In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan, Relative to the Power of the Executive Branch to Establish, Maintain, and Operate Quarantine Facilities in Guam and to Promulgate Quarantine and Sanitation Regulations for the Protection of Guam Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 36 of 36

[76] Our courts have the inherent power to review agency actions and order compliance with

the law. Exercising this power does not “modify” a DPHSS quarantine order and does not

encroach on the Governor’s powers and duties under 48 U.S.C.A. § 1421g(a).

/s/ /s/ ROBERT J. TORRES KATHERINE A. MARAMAN Associate Justice Associate Justice

/s/ F. PHILIP CARBULLIDO Chief Justice