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3L$_q%(OF CLERK GFCGURT
COURT
IN THE SUPERIOR COURT OF GUAM BY=.
L.A., L.A.,aaminor minor person
person with
with a disability by
by and
and CIVIL CASE NO. CV0464~23 no. CV0464-23
through her parent, parent,
G.D., aa minor minor person with a disability by and and
through his parent, E.R., aa minor person with a disability byby and and DECISION AND ORDER GRANTING GRANTING
through his parent, parent, MOTIONS TO DISMISS MOTIONS TO
N.K.,aaminor N.K., minor person person with
with a disability by
by and
and
through her parent, parent,
N.K.,aaminor N.K., minor person person with
with a disability
disability by
by and
and
through her parent, parent,
E.G., aa minor minor person with a disability byby and and
parent,
through his parent, F.A., F.A., aa minor person with a disability byby and and
through her parent, parent,
J.B., a minor person J.B., personwith with a disability
disability by
by and
and
through his parent, parent,
J.'L, J.Y., aa minor person with with a disability by and
and
through his parent, and M.R., M.R., aa minor minor person
person with
with a disability by
by and
and
through his parent, parent,
Plaintiffs,
vs.
Kenneth Erik Swanson, Ph.D., in Swanson, Ph.D., in his
his official
official
capacity as as Superintendent, Guam Department of Education, et al., al.,
Defendants. Defendants.
In In this this lawsuit
lawsuit by students
students seeking redress against against the
the Guam
GuamDepartment
Departmentof
of Education's
Superintendent and Board Superintendent and Boardmembers members("GDOE"),
("GDOE"), the
the Court reviews
reviews whether
whether certain
certain students'
students'
failure failure to file file administrative
administrative review claims claims deprives itit of subject subject matter
matterjurisdiction.
jurisdiction. The Court
determinesthat that Guam law requires students studentsto
to avail
avail of
of an administrative
administrative review
review process as
as a
prerequisite to filing tiling aa lawsuit against GDOE. The TheCourt,
Court,therefore,
therefore,has
has no
no choice
choicebut
but to
to dismiss
dismiss
ORIGINAL URGINAL
CV0464-23 DECISION AND ORDER GRANTING MOTIONS TO DISMISS Page22 Page
the claims of those students who did not first seek administrative review.
I. BACKGROUND
A. L.A.
L.A. and
and G.D.
G.D. filed administrative claims.
On June 26, 26, 2023,
2023, through
through their
their attorneys,
attorneys, Guam
Guam Legal
Legal Services
ServicesCorporation
Corporation (GLSC),
(GLSC),
Plaintiffs L.A. and G.D. each filed Government Claims Act claims with the Office of Government Claims of the
Attorney General ("OAG") and General ("OAG") and GDOE.
GDOE. Decl.
Deel.Counsel
Counsel (Apr.
(Apr. 5,5, 2024),
2024); Doc.
Doc. Submission, Exs. U,
Submission, Exs.
V (Sept. 11, 2023). sought injunctive 2023). The claims sought injunctive relief relief under
under the Every Child
Child Is
Is Entitled to an
Adequate Public Adequate Public Education Education Act,
Act, Guam
Guam Public
Public Law 28-45. 11 L.A. and Law No. 28-45. and G.D. claimed claimed that their
schools-AguedaI.I.Johnston schools-Agueda Johnston Middle Middle School
School and Oceanview
Oceanview Middle
Middle School-maintained unsafe School-maintained unsafe
and unsanitary unsanitary learning learning environments.
environments. L.A.
L.A. further
further sought relief GDOE's failure to provide relief for GDOE's
her with a certified teacher.
Assistant Attorney
Within two days, Assistant Attorney General General ("AAG")
("AAG") Graham
Graham Botha acknowledged
receipt of the claims, claims, but
but asserted
assertedthat
thatthey
theywere
wereprocedurally
procedurallydeficient.
deficient. Id.
Id. Attorney Daniel
Somerfleck Somerfleck of of GLSC contends that phone phone conversations
conversations then
then ensued
ensued between
between himself
himself and AAG
Botha to discuss the the alleged defects and potentially the lack of jurisdiction jurisdiction to
to review
review the claims.
Attorney Somerfleck Attorney Somerfleckwrote wroteaa letter
letterdated
dated July
July 7, 2023, in
7, 2023, in which
whichhe
heconfirms
confirmsthe
thedefects
defects had
had been
been
addressed. addressed. Id. Attorney Attorney Somerfleck
Somerfleck received
received no
no further
further correspondence from the OAG and no
response at all all from
from GDOE.
GDOE. Id.
B. L.A.,
L.A.,G.D.,
G.D.,and
andothers
others file
file aa lawsuit.
lawsuit.
In August 2023, Plaintiffs L.A.
L.A. and
and G.D.
G.D. sued
sued GDOE,
GDOE, alleging
alleging it did
did not
not meet
meet the
Act's mandates. 2 Comal.
Adequate Education Act's Compl. (Aug.
(Aug. 11,
11, 2023). L.A.
L.A. and
and G.D.
G.D. asserted
asserted that,
that, in
11 Also Also referenced referenced herein
herein as
as the
the "Adequate
"Adequate Education Act."
22 The The original original Complaint Complaint and
and subsequent
subsequent complaints
complaints list
list fourteen
fourteen enumerated
enumerated mandates under the Act, implying a broad range of violations occurred within the subject schools.
ORIGINAL URIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING
GRANTING MOTIONS TO DISMISS Page3 Page
compliance with the Act, they also filed administrative claims with the OAG and the acting
Superintendent.
Four months later, Plaintiffs Plaintiffs filed
Bled aa Second
Second Amended
Amended Complaint, adding eight more
Plaintiffs--all GDOE special education students seeking Plaintiffs--all GDOE seeking relief under the Adequate Education
Act, The Act. The additional additional Plaintiffs
Plaintiffs admit
admit they did not lodge administrative claims on the grounds of
futility, "[b]ased upon the nature ofrelief relief sought, the positions of the Defendants currently in this
... the
matter, ... the complete completelack
lackof
ofresponse
response to
to the
the claims
claims from
from the Defendants
Defendants and
and A.G. Graham
Botha Botha only only challenge[ing] the format of the claim." Second challeng[ing] the SecondAm. Compl.1]~ 31 (Jan. 22, 2024).
Am.Compo.
Defendants filed
tiled two motions
motions asking the Court to dismiss the the eight
eight additional
additional Plaintiffs
Plaintiffs
who did not not file administrative claims and and therefore failed
failed to exhaust their administrative
remedies. 3 Dens.'
Defs.' Mot. Dismiss (Mar. 8, 2024);
2024), Defs.'
Dens.' Mot. Dismiss (May 15, 15, 2024).
Defendants also ask the Court Defendants due to Coup to reject G.D.'s claim due to a lack of conciseness and to prevent
Plaintiffs from asserting claims on behalf behalf of
of similarly situated individuals.
Plaintiffs respond that exhausting exhausting the administrative administrative process
process isis fictile, to which futile, to which they
contend the Attorney General conceded when responding to the first first two
two Plaintiffs'
Plaintiffs' claims.
claims. The
eight eight additional Plaintiffs Plaintiffs iixrther assert that further assert that the the Government
Government Claims Act route applies to
damages claims, which they are not asserting.
asserting. Finally,
Finally, Plaintiffs
Plaintiffs argue the doctrine of"vicarious "vicarious
exhaustion" saves thosewho saves those who opted
optednot
notto
tofile
file a claim.
claim.
u. II. LAW AND AND DISCUSSION
DISCUSSION
A. The
TheOrganic
OrganicAct
Actand
andthe
the Adequate
Adequate Education
Education Act.
3 3 Defendantsalso Defendants alsoargue arguethat
thatGDOE
GDOEhas hasnot
notwaived
waivedits
itssovereign
sovereignimmunity.
immunity. Because
Because the Court
grants the motions due toto the failure failure to exhaust administrative exhaust administrative remedies, it declines declines to
to reach the
sovereign immunity immunity argument.
argument. Nonetheless,
Nonetheless, the
the Court
Court notes immunity does notes that sovereign immunity does not
2, apply to claims for inc Guam 2 ii 15.
unctions-the sole
injunctions-the sole relief reliefsought
sought here.
here. See
See Gangs
Gange Mv. Gov 'ti of
ofGuam, 2017
ORIGINAL URIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING MOTIONS TO DISMISS Page4 Page
The Organic Organic Act-Guam's constitution4-statesthat Act-Guam's constitution4-states that"the "theGovernment
Government of
ofGuam
Guam shall
shall
provide an adequate public educational system system ...
... and
andtoto that
that end
end shall
shall establish,
establish, maintain, and
operate public schools operate public schools according according to
to the
the laws
laws of
of Guam."
Guam." 48 U.S.C.A. §§ 142lg(b).
48 U.S.C.A. 1421g(b). Moreover, Moreover, the
the
Organic Organic Act Act lists compulsory education lists compulsory education under under its
its Bill
Bill of
of Rights.
Rights. 48
48 U.S.C.A.
U.S.C.A. §§ I421(r).
1421(r).
In 2005, the Legislature analogized the right right to an adequate public education to a
constitutional civil right.
right. Guam
Guam Pub.
Pub. L. 28-45:3 (June 13, 2005).
2005). It created the "Every Child is
Education Act"
Entitled to an Adequate Public Education to reflect the prioritization of the education of Act" to of
Guam's children. Guam's children. P.L.
P.L. 28-4512.
28-45:2. To
To that
that extent,
extent, the Legislature enacted a mechanism that "gives
school school children access to the access to thecourts
courtstotovindicate
vindicatethat
thatright."
right." P.L.
P.L. 28-4523.
28-45 :3.
First, it granted granted students standings5 to students standing to seek seek an injunctions6 against an injunction against the the government
government and an
Executive Branch official who fails to provide an adequate adequate public
public education.
education. P.L.
P.L. 28-45:16 (7
GCA GCA §§ 12108.1(a)), 28~45:19(19 12108.l(a)), 28-45:19 (19GCA GCA§ 1116).
1116). Second,
Second, before
before aa student
student can
can sue
sue in
in court, the
court, the
Act required the student to to file
file aa claim
claim "in
"in the
the manner
manner required
required by"
by" portions
portions of
of the
the Government
Government
Claims Act. P.L. Claims Act. P.L. 28-45: 16(7 28-45:16 (7GCA
GCA§§ 12108.l(b)).
I2l08.1(b)). The
The claim had to
claim had to be lodged with be lodged with the Attorney the Attorney
General and a department department head.
head. Id.
Id. The
Theclaim
claimthen
thenripened
ripenedthirty
thirty days
days thereafter,
thereafter; in
in other
words, the OAG and GDOE had had up
up to
to thirty
thirty days to take action in response to the claim before
4 4 In re: Request of Lourdes A. Leon Guerrero, I Mama 'hagan Goa°han, Relative ro the Power of In re: Request ofLourdes A. Leon Guerrero, I Maga 'hdgan Guahan, Relative to the Power of the Executive Branch Erancn to
to Establish,
Establish, Maintain,
Maintain, and Operate Quarantine Quarantine Facilities
Facilities in
in Guam
Guam and
and to
Promulgate Quarantine and Sanitation Rags. Promulgate Quarantine and Sanitation Regs.for for the Protection of of Guam Ag. Importation Ag. Importation and
Spread of of Disease, Disease, 2021 Guam 61i ,r 34.
55 Standing Standing is a thresholdjurisdictional threshold jurisdictional matter. Benavente v. u Tairano, Taitano, 2006 Guam 15 15 ll,r 17.
Because the standing granted to school school children
children isis provided
provided by
by law,
law, itit falls under a category of standing known as "statutory "statutory standing."
standing." The The Guam
Guam Supreme
Supreme Court
Court directs that when
interpreting provisions conveying conveying statutory
statutory standing, the court's analysis begins with the plain language of Id. ll,r 19.
of the relevant statute. Id. 19.
66 The The Legislature Legislature made made clear
clear that
that claims
claims filed under the
filedunder theAct
Actmay
mayonly
only seek
seek injunctive
injunctive relief.
relief. RL.
P.L.
28-45: 16-17.
ORIGINAL
CV0464-23 DECISION AND AND ORDER
ORDERGRANTING
GRANTINGMOTIONS
MOTIONSTO
TODISMISS
Dlsmlss Page5 Page
lawsuit. Id. Third,
the student could file a lawsuit. Third, the the Act
Actestablished
established aa statute
statute of
of limitations of
of six
months. months. p.L.
P.L. 28-45:15 28-45:15 (7
(7 GCA
GCA §§ 11311)-
11311).
B. The
Theeight
eightadditional
additionalplaintiffs
plaintiffswere
were required
required to
to exhaust
exhaust their administrative remedies.
eight additional Plaintiffs concede The eight concede they did not follow follow the
the Adequate
Adequate Education Act's
Act's
administrative review route. They They claim
claim that
that filing
filing the
the claims
claims was
was useless because, in addition to
L.A. L.A. and and G.D.
G.D. receiving
receiving no
no response from the
response from the OAG
OAG or
or GDOE, AAG
AAG Botha
Botha had
had indicated
verbally the OAG did not have jurisdiction to review the claim.
Guam has long upheld the administrative exhaustion doctrine, which "provides that no
is entitled to judicial relief one is relief for a supposed or threatened injury until the prescribed
administrative administrative remedy remedyhas
has been
been exhausted."
exhausted." Barrett-Anderson v. Camacho, Camacho, 2015 Guam 20
(citing Woodford Woodford v. Ngo, Ngo, 548 U.S.
U.S. 81,
81, 88-89 (2006)).
(2006)). In
Inaa recent
recent opinion,
opinion, the
the Guam
Guam Supreme
Supreme
Court explored the futility futility exception
exception to
to the
the administrative
administrative exhaustion exhaustion doctrine. Story-Bernardo Story-Bernardo
v. Government Government of ofGuam,
Guam, 2023 Guam 27, involved involved government
government employees
employees seeking
seeking double pay
during the COVID-19 pandemic. The The plaintiffs
plaintiffs claimed
claimed that
that exhausting administrative remedies
was futile because the Governor, the Department of Administration Director, and the Attorney
General had declared that double pay provisions in administrative rules were not applicable
during the public health health emergency. They
They further
further claimed that the Civil Service Commission
closed, making was closed, malting a review review of employee grievances impracticable.
grievances impracticable.
The Guam Supreme Court determined the government government officials' declarations declarations did not
mean administrative review efforts were futile.
futile. "Futility
"Futility isis aa narrow exception exception that applies only
if if the party invoking it can positively state that the the administrative
administrative agency has declared what its
ruling will be in a particular ld. ,r case." Id.
particular case." 1]23.
23. The agency, in
in other
other words, must have already
"made "made itit clear" that pursuing pursuing the
the administrative
administrativeprocess
processwould
wouldbebefutile-which
futile-which the
the CSC
CSC had not
ORIGINAL URIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING MOTIONS TO DISMISS Page 6
done. Id. 1122. done. Id. , 22. In contrast, the employees' "preconception of of the futility of
of administrative action
does not permit" the administrative process to be be bypassed.
bypassed. Id.
Plaintiffs here have not shown that either the OAG or GDOE had "made "made it clear" that
administrative administrative review would would be
be futile.
futile. InInfact,
fact,the
therecord
recordreflects
reflects no
no statement
statement from either body.
Plaintiffs have furnished hearsay statements, such such as
as an
an agreement
agreement by
by AAG Botha that the
the OAG
OAG
lacked jurisdiction to review Adequate Education Act claims, but that single unverified statement
alone cannot rise to to the
the level
level of
of a definitive
definitive agency
agency position. The silence position. The silence of
of both
both agencies as to
L.A. and G.D.'s L.A. and G.D. claims claims did
did mean
mean that
that their claims ripened their claims ripened thirty thirty days
days after
after filing.
filing. 77 GCA
GCA §§
12I08.1(b). 12108.l(b). But But this
this Court
Court cannot
cannot equate
equate such
such silence to a definitive statement by the OAG or
GDOE GDOE as futility of as to the futility ofother otherstudents'
students' efforts
efforts to
to seek mandatory administrative seek mandatory administrative review.
Plaintiffs furthermore furthermore assert
assert that
that the
the Government
Government Claims Act cannot provide a remedy remedy
because it is is intended
intended to
to evaluate
evaluate damages
damages rather
rather than
thaninjunctive
injunctiverelief.
relief In
In analyzing
analyzing this
argument, the Court must again use use plain
plain language in interpreting the the Adequate Education Act.
The Act notably does does not
not adopt
adopt the
the Government
Government Claims
Claims Act
Act ininfull,
ill, which
which shows
shows that
that the
Legislature was careful careful in
in its
its intention
intention and
and application.
application. This could be seen, for example, in the
second half half of of the standing clause, which says says that a claim can be filed once thirty days have
passed since the the filing
filing of
of the
the claim.
claim. Id.
Id. This
This contrasts
contrasts with the usual eighteen months in which
the government the government can can evaluate
evaluate aa typical
typical government
government claim
claim before
before it ripens. See
it ripens. See 55 GCA
GCA §§ 6106(b).
6106(b
gleans from
What this Court gleans Rom the Adequate Education Act's administrative process
established by the Legislature is that itit wanted established by wanted to to provide
providestudents
students quick
quickaccess
access to remedies,
remedies,
while still allowing an administrative process process for
for GDOE
GDOE to
to evaluate
evaluate claims.
claims. The point
point of
of the
administrative administrative review, review, after
afterall,
all,isistotoallow
allowagencies
agenciestotoexercise
exercise their
theirexpertise
expertise to
to address
address
disputes. disputes. As As stated
stated by another court,
another court,
ORIGINAL URIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING
GRANTING MOTIONS TO DISMISS Page7 Page
Exhaustion of of the administrative process allows for the exercise of of discretion
and educational expertise by by state
state and local agencies, affords full exploration of of technical education issues, furthers furthers development
development ofof a complete factual record, and promotes judicial efficiency by giving those agencies agencies the first
opportunity to correct shortcomings in their educational programs for disabled children.
S. W by J.LW S. W W v.
v. Warren,
Warren, 528 F.
F. Supp.
Supp. 2d
ad 282,293
282, 293(S.D.N.Y
(S.D.N.Y 2007);
2007), see also
also Clint
Clint Independent
Independent
School School Dist. v. Marquez, Marquez, 487 S.W.3d 538 (Tex. 2016). In Inthe
the area
area of
ofeducation,
education, other courts
have remarked that 'judges 'Judges are
are not
not trained
trained educators
educators and
and we
we are cautioned not to substitute our
own own notions notions of of sound educational policy which we review."as policy for those of the school authorities which
JB. J.B. ex ex rel.
rel. Bailey Bailey v.
v. Avilla
Avilla R-.UH
R-Xl/1School
School Dist., 721 F.3d (8 th Cir.
F.3d 588, 594 (Sth Cir. 2013).
The Court finds the Adequate Education Act's Act's administrative
administrative process
process to be quick and
reasonable, and specifically specifically developed
developed to address
address injunctive
injunctive relief.
relief. By their silence, the OAG
and GDOE GDOE have have appeared appeared to
to have
have waived
waived their
their opportunity
opportunity to
to offer
offer relief
relief for
for L.A.
L.A. and
and G.D.
G.D. at
the agency agency level.
level. However,
However, no
no government
government body
body has
has "made itit clear"
clear" that
that the
the review
review process
process
would be handled handled the the same way
way for
for the
the other
other Plaintiffs attending other schools and presenting
other complaints separate from L.A. and G.D.
G.D. Instead,
Instead, the choice
choice not
not to pursue administrative
remedies remedies appears appears to have derived from GLSC's GLSC's preconception
preconception that
that the process would be useless,
based on the agencies' handling handling of
of their
their other clients' claims.
C. The
TheAdequate
AdequateEducation
EducationAct
Actdoes
does not
not violate
violate the
the students'
students' constitutional
rights.
Plaintiffs further argue argue that
that they
they have
have constitutional standing because the Organic Act
guarantees the right guarantees the right to to an
an adequate education.
The Court first addresses GDOE's GDOE's response
response to
to this argument, which
which is
is that
that the right
contained within within the
the Organic
Organic Act
Act exists
exists only
only as
as further substantiated through the laws of Guam,
such as the the Adequate Adequate Education
Education Act.
Act. GDOE
GDOE grounds this argument in the Organic Act's Act's
particular particularphrasing phrasing that
that the
the Government
Government shall
shall provide
providean
an adequate
adequate educational
educational system "and to
ORIGINAL
CV0464-23 DECISION AND ORDER GRANTING GRANTING MOTIONS
MOTIONS TO DISMISS Page 88 Page
that end shall establish, maintain, and operate public public schools according
according to
to the
the laws of
ofGuam." 79
48 48 USC USC§ 1421g(b) (emphasis added).
1421g(b) (emphasis added).
The Court disagrees, as does disagrees, as doesthe
theLegislature.
Legislature. The Adequate Education Education Act recognizes
that an adequate education in Guam is a constitutional constitutional civil
civil right.
right. Moreover,
Moreover, aa majority of
of states
with constitutional with constitutionallanguage language similar
similarto
tothe
the Organic
OrganicAct
Actrecognize
recognizethe
the right
righttotoan
anadequate
adequate or
efficient efficient education education as
as aa constitutional right. 7 constitutional right.7
Even Even if
if the right
right to an adequate education education is a constitutional civil right, the question
remains whether whether the Legislature can require an initial initial administrative
administrative review
review over
over that
that right.
right. In
examining examining this this question, the Court recognizes that legislative enactments are presumed to be
constitutional. In re re Request off.
Request of L. Leon 2021 Guam 6 ,r1124.
Leon Guerrero, 2021 Binding authorities direct 24. Binding
statute to
this Court to "construe a statute to avoid avoid organic infirmities." In Re: Request Request off
of IMega
Maga'ac?hen
'ldhen
SeeAla. 77 See Ala.Const.
Const.Art. Art.XIZ
XIZ§§256, Ariz. Const.
256; Ariz. Const. Art. 11 §§ lA;
Art. 11 lA, Conn.
Conn. Const.Const. Art.Art. 88 §§ 1;
I, Del.
Del. Const.
Const.
Art. X § 1, Ky. Const. § 183, Minn. Const. Art. 13 § 1, Miss. Const. Art. X § l; Ky. Const.§ 183; Minn. Const. Art. 13 § 1; Miss. Const. Art. 8 § 201; Mont. Const. Art. 8 § 201, Mont. Const. Art. 10 Art. 10 §§ 1(3), N.H. Const.
1(3); N.H. Const. Pt.
Pt. 22 Art.
Art. 83,
83; N.J.
N.J. Const.
Const. Art.
Art. 88§§ 44 11,r 1;I, N.Y.
N.Y. Const.
Const. Art.
Art. 1111 §§ 1;
1, N.C.
N.C.
Const. Art. IX § 2, N.D. Const. Art. VIII § 1, Pa. Const. Art. 3 § 14, Const. Art. IX§ 2; N.D. Const. Art. VIII§ 1; Pa. Const. Art. 3 § 14; S.D. Const. Art. 8 § 1; Tenn.S.D. Const. Art. 8 § 1, Tenn. Const. Art, 11 Const. Art. 11 §§ 12;
12; Vt.
Vt. Const.
Const. §§ 68,68; Va.
Va. Const.
Const. Art. Art. 88 §§ 1, W. Va.
1; W. Va. Const.
Const. Art. Art. 12
12 §§ 2,2; Wis.
Wis. Const.
Const.
Art. 10 Art. 10 §§ 3, 3; Wyo.
Wyo. Const. Art. 77 §§ 1.
Const. Art. 1. For Forsupporting
supportingcaselaw caselaw in in these jurisdictions, see these jurisdictions, see Pinto uv.
Ala. Coal. Ala. Coal.forEquity, for Equity, 662 So. So. 2dad 894 894 (Ala.
(Ala. 1995),Hull
1995); HullV. v. Albrecht, 950 P.2d 1141(Ariz.
P.2d 1141 (Ariz. 1997), 1997);
Lake Lake View Sch. Dist.
View Sch. Dist. No.
No. 25
25 of
of Phillips
Phillips Cry.
Cty. v. Huckabee,
Huckabee, 91 S.W.3d472
S.W.3d (Ark. 2002), 2002); Conn.
Conn.
Coal.fofzfusfice Coal. for Justice in in Educ. Funding Inc.
Educ. Funding, Inc. vv. Real, Rell, 176176 A.3d 28 (Conn. 2018); 2018), Delawareans for for Educ. Educ. Opportunity Opportunity v. v. Carney, Carney, 199 A.3d A.3d 109 (Del. (Del. Ch. 2018);
2018), Rose v.v Council for Better Better Educ., Inc., Inc., 790 790 S.W.2d S.W.2d 186 (Ky. (Ky. 1989), 1989); Cruz-Guzman
Cruz-GuzmanVS State, 916 N.W.2d v. State, N.w2d 11 (Minn. (Minn. 2018), 2018); Clinton
Clinton
Mun. Separate Sch. Sch.Dist.
Dist. V. Byrd,
Byrd, 477 So. So. 2d 2d 237 237 (Miss.
(Miss. 1985); Contoocook
Contoocook Valley Sch. Dist.
Valley Sch. Dist. itv.
State, State, 251 251 A.3d 270 270 (N (N.H. 2021 2021), ); Claremont Sch. Sch. Dist. v_ v. Governor, 703 A.2d 1353 (N.H. 1997), 53 (N.H. 1997);
Abbott by Abbot v. Burke, 693 A.2d417 (N.J.
693 A.2d (NJ. 1997), 1997); Campaign For For Fiscal Equity, Equity Inc.Inc. uv. State, State,
295 A.D.2d A.D.2d 1, 1, 744 N.Y.S.2d 130 (2002), aff'd aff'das as modified modifiedand and remanded, remanded, 100 N.Y.2d N.y2d 893, 893, 801 N.E.2d N.E.2d 326 326 (2003), (2003); Hoke Cry. Bd. of Cty. Bd. of Educ.
Educ. v. State,
State, 879 S.E.2d 193 193 (N.C.
(N.C. 2022);
2022), Bismarck
Bismarck Pub.
Sch. Sch. Dist. No. 1. it State 1. v. State By and Through ND. Lewis. Assembly, N.D. Legis. Assembly, 511 511 N.W.2d 247 (N.D. 1994), 247 (N.D. 1994);
Sch. Sch. Dist. Of OfWilkinsburg Wilkinsburg vv. Wilkinsburg WilkinsburgEduc. Educ. Ass'n, Ass 'n, 667
667 A.2d
A.2d 55 (Pa.
(Pa. 1995),
1995); Davis
Davis vv. State,
State, 804
N.W.2d N.W.2d 618 618 (S.D. 2011),2011); Project Project Reflect, Inc. v.it Metro. Nashville Reflect, Inc. Nashville Ba Bd. ofofPub.
Pub. Educ.,
Educ., 947947 F. F. Supp.
ad 2d 868 (M.D.
(M.D. Term. 2013), Whale Tenn. 2013); Vitale v.v Bellows Bellows FallsFalls Union High Sch., Sch., 293 A.3d A.3d 309 309 (Vt.
(Vt. 2023);
2023),
Scott Scott v. Commonwealth, 443 S.E.2d 138 138 (Va. 1994), 1994); Ba. Educ. ofCty.
Bd. of Educ. ofCty. of ofKanawha Kanawha v.it WV W.V. Bd.
Bd.
of Educ., of Educ., 639 S.E.2d 893 (W. Va. 2006), Vincent 893 (W. Va. 2006); Vincent v. Voight, V. Voighf, 614 N.W.2d 388 (Wis. 2000), 2000);
Campbell Cry. Scn. Dist.
Cty. Sch. Dist. v. State, State, 907 P.2d 1238 1238 (Wyo.
(Wyo. 1995).
ORIGINAL 0R1G
CV0464-23 DECISION AND ORDER ORDER GRANTING
GRANTING MOTIONS TO DISMISS Page99 Page
Guéhan Eddie B. Guahan Eddie B. Calvo Calvo Relative
Relative to
to lnte,p.
Intefp. and
and Appl.
Appt. of
of Organic
Organic Act§
Act 1423b
1423b and
and What
What
Constitutes the the Aff. of the Members Vote of
Ag Vote of]I Liheslaturan Members of Liheslaturan Gudhan, Guahan, 2017
2017 Guam ,r 33. No
Guam 141133.
of the Adequate Education party has challenged the organicity of Education Act, Act, and
and more
more particularly,
particularly, its
students; thus, the Court continues to presume it to be in line with the provisions on standing for students,
Organic Act.
other courts recognize that a Legislature Furthermore, other Legislature can can impose
impose reasonable conditions
upon one's enforcement constitutional right, enforcement of a constitutional right, as as long as such
such regulations
regulations do
do not
not materially
materially
impair impair the right. Davis v. State, State, 443 N.W.2d 707, 709 (Iowa 1989), 1989); Muller v. Muller, 4 Cal.
Rptr. Rptr. 419, 419, 422 (Cal. App. 1960)
1960) (a
(a "constitutional
"constitutionalright
rightisisalways
alwayssubject
subjecttotoreasonable
reasonable statutory
limitations"). The 1ixnitations"). The Texas Texas Supreme
Supreme Court examined issue specifically within the context of examined this issue
the right to to an
an adequate education. In Clint Independent School District, adequate education. District, 487 S.W.3d at 538,
parents sued the school district for violations of the Texas Constitution and sought declaratory
The court
and injunctive relief. The court first first recognized its
its long-standing holding holding that
that persons
complaining about complaining about the school system must must exhaust if such exhaust their administrative remedies if
complaints were those the Texas Legislature authorized the administrative review body to
evaluate. evaluate. Id.atat546.
546. IfIf
a astudent
studentfiled
filedaaclaim
claimunder
underthe
theTexas
Texas Constitution
Constitutionbut
butalso
also under
under an
area regulated by by Texas
Texas school
school laws,
laws, administrative
administrative exhaustion exhaustion was
was still required. Id.
stillrequired. Id. at
at 553.
553. On
the other hand, if the claim did not allege a violation of any Texas school school laws,
laws, exhaustion would
not be necessary.
necessary. Id. at at 552.
552. The
Thecourt
courtalso
alsolooked
lookedtotothe
the Texas
Texas Legislature's
Legislature's extensive
extensive system
system
of of standards, sanctions, and and rewards
rewards to
to compel school districts to provide a constitutionally
adequate public education. adequate public education. "In "Inshort,
short, the
the school
school district
districthas
has aa duty
duty to
to provide
provide students
students a
constitutionally constitutionallyadequate adequate public
public education
education not
not because the Constitution because the Constitution compels it to do do so but
because the 'school laws of Id. at of this state' compel it to do so." Id. at 554.
ORIGINAL HRIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING MOTIONS TO DISMISS 10 Page 10
This is the same situation here. W`hi1e While the
the Organic
Organic Act instituted a constitutional right to
an adequate adequateeducation educationfor
for Guam's students, Education Act empowers students, the Adequate Education empowers students students and
defines that constitutional constitutional right.
right. Even though they reference the Organic Act's language,
Plaintiffs use use the presentation of the Adequate Education Act's criteria to guide their presentation of their their case.
case. For
example, Plaintiffs seek an injunction for GDOE to provide provide certified
certified teachers,
teachers; properly air-
conditioned and conditioned and ventilated ventilated classrooms,
classrooms; potable
potable water
water sufficient
sufficient for drinking,
drinking; flushable toilets,
clean restrooms, dining areas and classrooms;
classrooms, a "healthful, "healthful, safe,
safe, sanitary
sanitary learning
learning environment;"
environment,"
and at least 180 180 instructional
instructional days
days per
per school
school year,
year, among
among other relief. See Ex Parte Mot. Temp.
other relief.
(Aug. 11,
Restraining Order (Aug. 11, 2023);
2023), Second
Second Am.
Am. Compl.
Comal. These specific items derive from the
Adequate Education Act, rather than the Organic Organic Act. As in
Act. As in the
the Texas case, Plaintiffs'
educational constitutional rights here are not the center center of
of their case, Plaintiffs emphasize case; rather, Plaintiffs emphasize
within the
the enforcement of the mandates within the Adequate Adequate Education
Education Act.
Act. Because Plaintiffs' claims
overwhelmingly overwhelmingly derive derive from
from the
the Adequate
Adequate Education
EducationAct,
Act, the
the Court
Court finds
finds that
that administrative
exhaustion cannot be excused even even though
though Plaintiffs
Plaintiffs also
also have an ancillary constitutional claim.
D. Plaintiffs D. Plaintiffs have
have not demonstrated the applicability of vicarious vicarious exhaustion.
Plaintiffs next ask the Court to to consider
consider the
the eight additional Plaintiffs' claims as
exhausted vicariously through L.A. and G.D.
G.D. Plaintiffs
Plaintiffs point
point to a footnote in Story-Bernardo
whereby the Guam Supreme Court briefly mentioned the doctrine of vicarious vicarious exhaustion.
exhaustion. 2023
~ 20 n.4.
Guam 27 1]20 n.4.88 Defendants respond
respond that
that the doctrine applies applies only
only to
to class action cases.
88 For vicarious vicarious exhaustion, Story-Bernardo cites Barkley Barkley v.v. US.
US. Marshals Serv.
Sera ex rel. Hylton,
rel. Hylton,
2014). Barkely discusses the administrative exhaustion of 766 F.3d 25, 34 (D.C. Cir.2014). of employment discrimination employment discrimination claims with the the Equal
Equal Employment
Employment Opportunity
Opportunity Commission.
Commission. In
determining that determining that a group of individuals had not exhausted their individual administrative claims, Barkley points out that Congress instituted a mechanism whereby aa class of mechanism whereby of persons can collectively exhaust exhaust their
their administrative
administrativeremedies-a process unutilized by the group.
remedies-a process group. Again,
ORIGINAL NRIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING MOTIONS TO DISMISS Page 11 Page 11
While courts mainly mainly consider
consider vicarious
vicarious exhaustion
exhaustion in
in class
class actions,
actions, at least one court has
set forth a test test outside
outside of
of aaclass
classaction
actioncontext.
context. In
InFoster v. Gueory, 655 F.2d 1319 1319 (D.C.
(D.C. Cir.
Cir.
1981), the court permitted permitted intervenors
interveners into an employment employment discrimination discrimination case
case to
to avail of
exhaustion. The similarity of the vicarious exhaustion. the claims claims isis the
the"critical
"criticalfactor:"
factor" "Where
"Where the two claims
are so similar that it can can fairly
fairly be
be said
said that
that no
no conciliatory
conciliatory purpose
purpose would
would be
be served
served by filing
separate ... charges, then ... charges, then itit would would be
be 'wasteful,
'wasteful, ifif not
not in
in vain"'
vain"' to
to require
require separate
separate
administrative filings. Id. at filings. Id. at 1322 (citing Oatis v.v.Crown (citing Oaths Crown Zellerbach C01p.,398 Zellerbach ClIp., 398F.2d F.2d 496,
496, 498
498
th Cir. 1968)). In contrast, "where the two complaints differ to the extent that there is a (5th Cir. l968)). In contrast, "where the two complaints differ to the extent that there is a real
possibility that one of the claims might be administratively settled while the other other can be
only by resolved only Foster, 655 F.2d at by the courts," then exhaustion cannot be done vicariously. Foster,
1322. 1322.
Plaintiffs' discussion of of vicarious exhaustion was brief and did not reference or explore
the test regarding the similarity of claims. In In applying
applying that
that test,
test, itit is
is obvious
obvious to the Court
Court that the
are similar
various Plaintiffs are similar in in that
that they
they are
are special
specialeducation
education public
public school
school students.
students. The
OAG's OAG's and and GDOE's GDOE'scomplete
completelack
lackofofresponse
response toto L.A.
L.A. and
and G.D.
G.D. also
also suggests
suggests that
that it may be
wasteful and and in in vain
vain for further students to attempt the administrative process.
However, Plaintiffs' individual circumstances pose significant differences differences as
as well.
well. L.A.
and G.D. are middle school students at two two separate
separate campuses.
campuses. The eight
eight additional Plaintiffs
are elementary school students, middle school students at other campuses, and one high school
student. Some Someof ofthe
the Plaintiffs
Plaintiffs alleged
alleged their
their schools
schools had
had not
not received
received or
or passed
passed sanitary
sanitary
inspections, mention of inspections; others make no mention of inspections, implying implying their schools may have passed.
here in Guam, the Adequate AdequateEducation
EducationAct
Actlacks
lacksaasimilar
similarmethod
methodfor
formultiple
multiple individuals
individuals to
exhaust exhaust their claims claims as
as a class
class or
or group.
nRIGINAL
CV0464-23 DECISION AND ORDER GRANTING MOTIONS TO DISMISS Page 12
12
Some Some Plaintiffs instructional days;
Plaintiffs allegedly lack sufficient instructional days, others others do
do not.
not. Finally, some-but
some
all-complain not all of a lack of a certified complain of celtiiied teacher. Because of teacher. Because ofthe
the wide
wide range
range of
ofissues
issues presented
by Plaintiffs, GDOE's approach to each student's individual needs and the campuses may likely Plaintiffs, GDOE's
Finally, the differ. Finally, the Court Court notes
notes that
that the
the eight
eight additional
additional Plaintiffs sought relief six months after alter
L.A. and G.D.-also duringaadifferent G.D.-also during different school school year-and
year-andmonths
monthsafter
afterthe
thelitigation
litigation of
of L.A.
L.A. and
's cases G.D.'s cases begun begun vigorous litigation.
litigation.
differences in
These differences in student student needs,
needs, location,
location, and
and timing
timing lead
lead to of to the possibility that any of
the eight additional Plaintiffs could could have received a different administrative result had they
presented their administrative claims before filing filing aa lawsuit. For those lawsuit. For those reasons, vicarious
exhaustion does not apply.
E. G.D.'s
G.D. 'sclaim
claimsurvives
survives dismissal.
dismissal.
As to G.D.'s administrative claim, Defendants Defendants complain
complain that
that judicial review is
is barred
because the because claim did the claim not comply did not the requirement with the
comply with requirement of of being
being concise,
concise, in
in violation
violation of
of 55 GCA
GCA §§
6201(c). IfIfDefendants 620I(c). Defendantshad hadissues
issues about
about the
the contents
contents of
ofthe
the administrative
administrative claim,
claim, the
the appropriate
appropriate
time time to to address such concerns address such concernswould would have been
beenduring
during the
the administrative
administrative review process.
process.
Instead, Defendants sat on on their hands
hands and
and ignored G.D.
G.D.'s administrative claim.
Beyond proffering an untimely Beyond untimely argument, argument, GDOE
GDOE also
also fails
fails to suffer any prejudice.
G.D.'s's claims claims have have been
been before
before this
this Court
Court for over
over a year, and the parties have have actively engaged
in discovery. This means discovery. This means that GDOE has now had ample time to understand the basis basis of G.D.'s
G.D.'s
adequate education arguments. adequate education arguments. Because any lack of Because any ofconciseness has now conciseness has now been
been cured
cured through
through the
pleading and discovery process, and because GDOE waived any any lack
lack of
of conciseness by not
and allowing
responding to the administrative claim and allowing itit to to ripen, the Court finds dismissal on these
grounds grounds to to be inappropriate.
inappropriate.
ORIGINAL
CV0464-23 DECISION AND ORDER ORDER GRANTING
GRANTING MOTIONS TO DISMISS Page 13 Page 13
F. The Court
Court has
has broad authority to grant injunctive relief that will benefit similarly similarly situated
situated students.
students.
Finally, Defendants move
move the
the Court
Court to dismiss any
any claims
claims for relief
relief tiled
filed by Plaintiffs on
behalf of "similarly situated students." behalf of Defendants point students." Defendants point to to the
the lack
lack of
of any broad relief
relief under the
Adequate Education Education Act,
Act; in
in response,
response, Plaintiffs
Plaintiffs urge the Court Court to utilize broad, flexible powers Powers
of the dispute.
given the nature of
Again, the Court looks to to the
the plain language of
plain language of the
the Adequate
Adequate Education
Education Act.
Act. Whether by
oversight oversight or by intention, the law makes makes no
no provision
provision for
for aa student
student or
or group
group of
of students
students to assert
assert
claims on behalf of others. The behalf of The standing standing provision
provision explicitly
explicitly allows
allows standing
standing for
for aa student
student ro
to sue
because thegovernment because the governmentor or aagovernment
governmentofficer
officer failed to provide provide an
an adequate public education adequate public
"to public school "to that public school student."
student." 77 GCA
GCA §
§ 12108.l(a)
l2108.l(a) (emphasis
(emphasis added).
added). Nonetheless,
Nonetheless, the
the Court
Court
may grant injunctive injunctive relief
relief when
when "necessary
"necessary to
to prevent
prevent aamultiplicity
multiplicityof
ofjudicial proceedings." 7 judicial proceedings."
GCA GCA §§ 20302.
20302. In
In other
other words,
words, while
while standing
standing may
may not
not be
be conferred
conferred upon
upon one
one student
student to
to
represent others, the Court may may consider injunctive relief relief with broader application.
Ill. n. CONCLUSION
The eight additional Plaintiffs Plaintiffs failed
failedtotofile
fileadministrative
administrativeclaims-a
claims-a requirement
imposed by the Adequate Education Act. Accordingly, Accordingly, the
the Motions
Motions to
to Dismiss
Dismiss their
their claims are
GRANTED.° GRANTED. 9 L.A.
L.A. and
and G.D.'s
G.D.'sclaims
claimsbrought
broughtinin this
this case
case shall
shall proceed
proceed to
to trial,'°
trial, 10 if
if not
not earlier
earlier
disposed of currently pending of through currently pending dispositive dispositive motions.
motions. Finally,
Finally, the remaining Plaintiffs may
99 The The Court does
does not take this
this ruling
ruling lightly;
lightly, it recognizes that the short statute of limitations established by thethe Adequate Adequate Education
Education Act
Act may
may render
render these
these students'
students' claims
claims time-barred.
time-barred. While
irreparable injury injury and
and public
public policy
policy could
could also serve asas administrative administrative exhaustion exceptions and could possibly have applied here, Plaintiffs did not offer up up those exceptions and they do not appear to to be
be recognized
recognized under Guam law.
10 The hearing on a preliminary injunction was halted pending 10 The hearing on a preliminary injunction was halted pending the Court's disposition of the issues discussed herein.
herein. The
The hearing
hearing shall
shall now
now be
be joined
joined with
with the
the trial,
trial, which
which is
is set for
November November 12,12, 2024.
ORIGINAL URIGINA
CV0464-23 DECISION AND ORDER GRANTING MOTIONS TO DISMISS Page 14 Page 14
not assert claims on behalf behalf of similarly situated students, but that does does not prevent the Court
from issuing injunctive relief relief that may alleviate future claims brought by other students.
SO ORDERED, ORDERED,10
10September
September z024.
2024.
we:
HON. Y E M. IRIARTE Judy , Superior Court of Guam
Appearing Attorneys: Daniel S. Somerfleck, Esq., and Philip Tydingco, Esq., Guam Guam Legal
Services Corporation, for Plaintiffs Jesse Nasis, Esq., Matthew E. Wolff] Esq., and Wolff, Esq., and James
James Stake,
Stake, Esq.,
Esq., Guam
Guam Department
Department of
of
Education, for Defendants
J
:nRfIGINA J GINAl