2§2*lSEP IG AH 20211 SEP IO M1 53: 29 S: 29 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