Joseph v. Guam Board of Allied Health Examiners
This text of Joseph v. Guam Board of Allied Health Examiners (Joseph v. Guam Board of Allied Health Examiners) is published on Counsel Stack Legal Research, covering Superior Court of Guam primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE SUPERIOR COURT OF GUAM 2
3 DR. JOEL JOSEPH, ) Special Proceedings Case no. SP01 00-12 4 ) Petitioner, ) 5 ) DECISION AND ORDER vs. ) 6 ) GUAM BOARD OF ALLIED 7 HEALTH EXAMINERS, ) ) 8 Respondent, ) ) 9
II INTRODUCTION
12 This matter came before the Honorable Judge Michael J. Bordallo on February 21,2013
13 for judicial review of Respondent's June 13, 2012 decision. Petitioner Dr. Joel Joseph was
14 represented by Attorney Mitchell F. Thompson. Respondent was represented by Assistant 15 Attorney General Benjamin M. Abrams. After having reviewed the file and the papers and 16 motions filed herein and received the arguments of the parties the court hereby issues the 17 following decision and order voiding the Respondent's June 13,2013 final decision because the 18
19 Respondent failed to comply with the notice provisions of Guam's Open Government Law.
20 BACKGROUND 21 The instant action arises out of a June 13, 2012 discipline decision by the Guam Board 22 of Allied Health Examiners. On June 15, 2013, the Petitioner, pursuant to 5 GCA § 9241, filed 23 a paper petitioning this court for judicial review I writ of mandate. The petition requested that 24
25 the court issue an order:
26 1) staying the Respondent's disciplinary decision, 27 2) requiring Respondent to show cause why the disciplinary decision should not be set aside, 28
Page 1 of5 3) issuing a writ of review requiring Respondent to certify the record and proceedings of its 2 disciplinary action, 3 4) vacating and setting aside the Respondent's discliplinary decision, and 4 5) awarding costs to Petitioner. 5
6 In support of these requests, on January 4, 2013 Petitioner filed a paper entitled, Petitioner's
7 Opening Brief. In his brief Petitioner argues that: 8 1) he was deprived of a fair hearing because: 9 a) the Respondent's board members were hostile and biased against him and should have 10
II been disqualified, and
12 b) there was ex-parte contact between the prosecuting attorney and attorney general office;
13 2) Respondent violated the Open Government Law when it: 14 a) prevented the disciplinary proceedings from being recorded, and 15 b) failed to give adequate notice ofthe disciplinary hearing; 16
17 3) Respondent incorrectly decided Petitioner's motion to dismiss the charges against him;
18 4) The discipline imposed by the Respondent was unauthorized and excessive. 19 Petitioner asserts that the court is to apply a de novo standard of review. 20 On February 1, 2013, Respondent filed a paper in opposition to Petitioner's requests 21 and opening brief. In its paper Respondent asserts that the standard of review is more 22
23 deferential to its decision than a de novo review and argues that the court is required to uphold
24 the board's decision unless it is not in accordance with law or supported by substantial 25 evidence. His paper in opposition also disputes Petitioner's assertions of: board bias, ex-parte 26 communication, due process, open government law violations, and excessive punishment. 27
Page 2 of5 On February 15, 2013, Petitioner filed a paper in reply to Respondent's opposition 2 paper. In it Petitioner requests that the court, after reviewing the decision of the Respondent 3 find that the Respondent's decision, when viewed in its totality, was fundamentally unfair. In 4 support of this request the Petitioner reasserts its prior arguments and includes two new 5
6 assertions of: counsel animus and a structural bias in the administrative code.
7 DISCUSSION 8 I. Standard of Review 9 In 2008 the Guam Supreme Court, reviewing an appeal from the Guam Superior Court's 10 review of the disciplinary decision of the Guam Board of Dental Examiners, explained the II standards of review that the Guam Superior Court is to apply to an administrative review writ of 12 mandate. Sule v. Guam Bd. of Dental Examiners, 2008 Guam 20 ~~ 8--11. The court is to review 13 de novo an administrative board's conclusions oflaw and affirm whether the board's findings of 14 fact are supported by substantial evidence. !d. at~ 8. Assertions that a petitioner's rights were 15 violated are reviewed de novo. !d. at~ 11. 16 II. Open Government Law, Statutory Notice 17 Petitioner argues that Respondent failed to follow the notice mandates of Section 8107 of 18 Title 5 ofthe Guam Code. In support of this he asserts that Respondent did not give the proper 19 48 hour notice and that it conducted business outside of the scope of its notice on April 17, 18, 20 19, 23, 24 and 24, 2012. 21 In opposition to this argument Respondent asserts and argues that Petitioner has waived 22 this argument because he failed to raise it before the board below. He asserts that this argument 23 is supported by Section 8115(c) ofTitle 5 ofthe Guam Code. 24 In reply Petitioner reasserts that the board failed to provide the statutorily mandated 25 notice of the hearings. He argues that Respondent has misapplied Section 8815(c) ofTitle 5 of 26 the Guam Code. 27 Chapter 8 ofTitle 5 of the Guam Code regulates the conduct of the Territory of Guam's 28 commissions, boards, and agencies. 5 GCA §§ 8101-104. Section 8107 ofthat title mandates
Page 3 ofS that all meetings be proceeded by five working days of, "public notice, and a second public 2 notice at least forty-eight (48) hours prior to the start of the meeting." !d. at § 81 07. Section 3 8108 of Title 5 requires that a written notice must be: 4 1) delivered personally, or by mail, to each member of a public agency; 5 2) given to each newspaper of general circulation and broadcasting station which airs a regular 6 local news program within Guam; 7 3) specify the time and place of the special meeting and the business to be transacted. !d. at§ 8 8108. The same section proscribes that, "[n )o other business shall be considered at such 9 meetings by the public agency." 10 Subsection 8115(c) of Title 5 ofthe Guam Code provides, II Any interested persons may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing a violation or 12 threatened violation of this Chapter by members of an agency or to determine the 13 applicability of this Chapter to actions or threatened future action of an agency
14 5 GCA § 8115(c). 15 In March of 2011 the Guam Supreme Court reviewing the mandates of the open 16 government law explained that Section 8114 of Title 5 requires that a violation ofthe notice 17 mandates of Section 8107, void the actions taken by the board. Sule v. Guam Bd. of Examiners 18
19 for Dentistry, 2011 Guam 5, ~ 14-15. Respondent does not dispute that Respondent did not
20 provide adequate statutory notice for its disciplinary hearings. Nor does he dispute that these 21 hearings were essential to its June 13, 2012, final decision. 22 On its face Section 8115(c) does not require that a violation of notice provisions be 23
24 brought before the reviewing board prior to their being raised on a writ of mandate. 5 GCA §
25 8115( c). The court is unaware of any binding or persuasive precedent that requires that a 26 board's failure to provide adequate notice is waived if it is not raised before that administrative 27 board. Absent further showing by the Respondent the court is unable to affirm its decision to 28 discipline Petitioner. Page 4 of5 III. Board Animus, Board Bias, Counsel Bias, Statutory Bias, Ex-parte Communications, 2 Charging Deficiencies, Excessive and Unauthorized Discipline, and Recording Violation.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
Joseph v. Guam Board of Allied Health Examiners, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-guam-board-of-allied-health-examiners-superctguam-2012.