Leevin Taitano Camacho, Attorney General of Guam v. Dafne M. Shimizu, Director, Guam Department of Revenue and Taxation, Lourdes A. Leon Guerrero, Governor of Guam, Atlas Amusement Enterprises, Inc., Darryl R. Styles d/b/a D&D Games, Guam Music, Inc., and DOES 1-10

2021 Guam 22

• Court: Supreme Court of Guam
• Decided: December 21, 2021
• Docket: CVA20-013
• Status: Published

Opinion

IN THE SUPREME COURT OF GUAM

LEEVIN TAITANO CAMACHO, Attorney General of Guam, Plaintiff-Appellee,

v.

DAFNE M. SHIMIZU, Director, Guam Department of Revenue and Taxation; LOURDES A. LEON GUERRERO, Governor of Guam; ATLAS AMUSEMENT ENTERPRISES, INC.; DARRYL R. STYLES d/b/a D&D GAMES; GUAM MUSIC, INC.; and DOES 1-10, Defendants-Appellants.

Supreme Court Case No. CVA20-013 Superior Court Case No. CV0780-13

OPINION

Appeal from the Superior Court of Guam Argued and submitted on April 7, 2021 Via Zoom video conference

Appearing for Defendant-Appellant Appearing for Plaintiff-Appellee: Guam Music, Inc.: Marianne Woloschuk, Esq. F. Randall Cunliffe, Esq. Assistant Attorney General Cunliffe & Cook Office of the Attorney General A Professional Corporation Litigation Division 210 Archbishop Flores St., Ste. 200 590 S. Marine Corps Dr. Hagåtña, GU 96910 Tamuning, GU 96913 Camacho v. Shimizu, 2021 Guam 22, Opinion Page 2 of 17

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

PER CURIAM:

[1] Defendant-Appellant Guam Music, Inc. appeals from a grant of summary judgment for

Plaintiff-Appellee Leevin Taitano Camacho, Attorney General of Guam. In granting summary

judgment, the Superior Court invalidated gaming regulations created by the Guam Department of

Revenue and Taxation because they were not promulgated under Guam’s Administrative

Adjudication Law, 5 GCA § 9300 et seq. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] This is the third appeal from Superior Court Case No. CV0780-13, and the fifth appeal in

total, we have entertained about the Guam Department of Revenue and Taxation’s (“DRT”)

licensing of electronic gaming activities. See generally Limtiaco v. Camacho, 2009 Guam 7;

Rapadas v. Benito, 2011 Guam 28; Barrett-Anderson v. Camacho (“Barrett-Anderson I”), 2015

Guam 20; Barrett-Anderson v. Camacho (Barrett-Anderson II”), 2018 Guam 20. These cases

provide an extensive history of Guam’s electronic gaming controversy. Here, however, we recite

only the core facts relevant for the disposition of this appeal.

[3] In 2001, I Liheslaturan Guåhan (“Legislature”) enacted Guam Public Law No. 26-052,

“An Act to Repeal and Reenact § 64.40 of Title 9, and § 39110 of Title 22, All of the Guam Code

Annotated Relative to Illegal Cockfight.” Guam Pub. L. 26-052 (Oct. 17, 2001). Section 4 of this

law granted certain rule-making authority to DRT:

Section 4. Promulgation of Rules. Notwithstanding any other provisions of law, the Cockpit License Board, together with the Department of Revenue and Taxation, is hereby authorized to promulgate necessary rules and regulations to create a comprehensive regulatory scheme to regulate all gaming activities on Guam; provided, that the rules and regulations shall restrict gaming activities to those authorized and licensed on Guam as of August 1, 2001. Camacho v. Shimizu, 2021 Guam 22, Opinion Page 3 of 17

P.L. 26-052:4. In accordance with P.L. 26-052:4, DRT submitted proposed gaming regulations to

the Legislature. One section of these regulations purported to allow the licensure of “[e]lectronic

gaming devices that have been registered, or were at any time previously registered, by [DRT]

pursuant to 11 Guam Code Annotated, Chapter 22, Article 2, prior to August 1st 2001.” 3 Guam

Admin. R. & Regs. (“GAR”) § 7114(a)(5) (2003).

[4] In 2004, the Legislature enacted P.L. 27-077, “An Act to Repeal and Reenact Chapter 16

and to Amend Other Sections of Title 1, Guam Code Annotated, to Update and Modernize the

Publication of the Laws of Guam and to Establish the Compiler of Laws within the Supreme Court

of Guam.” Guam Pub. L. 27-077 (Apr. 26, 2004). Section 1 of this law provided, among other

things, that all regulations promulgated by departmental directors and submitted to the Legislature

before the 27th Legislature would be codified and published. See P.L. 27-077:1; 1 GCA § 1610

(2005). Thus, DRT’s gaming regulations were added to Guam’s Administrative Rules and

Regulations at 3 GAR § 7101 et seq., but the regulations were not posted publicly on the Guam

Compiler of Laws website until 2012.

[5] In 2008, the Office of the Attorney General (“OAG”) advised DRT that the electronic

gaming devices it licensed were illegal gambling devices. Barrett-Anderson I, 2015 Guam 20 ¶ 7.

Upon receiving this advice, DRT informed gaming device license-holders that it would no longer

renew the licenses. Id. In response, the then-Acting Governor of Guam ordered the then-Acting

Director of DRT to resume issuing the licenses. Id. ¶ 8. DRT complied; electronic gaming device

licenses were later issued as before, and a tide of litigation followed. See Barrett-Anderson II,

2018 Guam 20 ¶¶ 4-8.

[6] By early 2013, “the dispute was apparently resolved,” and Guam Music, Inc. (“Guam

Music”), DRT, and the OAG stipulated to dismiss the existing gaming regulation cases. Barrett- Camacho v. Shimizu, 2021 Guam 22, Opinion Page 4 of 17

Anderson I, 2015 Guam 20 ¶ 9. However, later that year, the Legislature enacted P.L. 32-060, “An

Act to Add New §§ 5201 to 5205 to Chapter 5 of Title 11, Guam Code Annotated, Relative to

Gaming . . . .” Guam Pub. L. 32-060 (July 9, 2013). The newly enacted section 5205 authorized

certain bingo, lottery, and cockfighting activities, and “[a]ll other limited gaming activities as

authorized pursuant to statute.” 11 GCA § 5205(a)(4) (added by P.L. 32-060:2). With the

controversy rekindled, the OAG commenced this case, seeking a declaratory judgment that the

gaming regulations were invalid. The OAG amended its complaint to add another request for

relief: “A declaration that the electronic gaming device licenses issued pursuant to 3 [GAR] §

7114(a)(5) or P.L. 32-060 or both are void and must be immediately revoked and that no new

licenses shall be issued . . . .” Record on Appeal (“RA”), tab 7 at 11 (First Am. Compl., Aug. 15,

2013).

[7] The Superior Court granted the defendants’ motion to dismiss, holding the Superior Court

lacked subject matter jurisdiction because the OAG failed to exhaust its administrative remedies

under Guam’s Administrative Adjudication Law (“AAL”). Barrett-Anderson I, 2015 Guam 20 ¶¶

1, 12. On appeal, this court reversed, applying a legal exception to the doctrine of exhaustion

where administrative exhaustion would be futile. Id. ¶¶ 30-34. After this court’s first remand, the

OAG moved for summary judgment. But before the Superior Court resolved this motion, the case

came back before this court on interlocutory appeal over financial responsibility for DRT’s legal

representation. We ordered DRT to pay for its own counsel. See Barrett-Anderson II, 2018 Guam

20 ¶ 32.

[8] After our second remand, the Superior Court heard oral arguments on the motion for

summary judgment and then granted the motion via Decision and Order. The Superior Court filed Camacho v. Shimizu, 2021 Guam 22, Opinion Page 5 of 17

its Judgment, declaring the electronic gaming regulations in 3 GAR § 7114(a)(5) void and voiding

all gaming device licenses issued under the regulations.1 Guam Music timely appealed.

II. JURISDICTION

[9] This court has jurisdiction over appeals from final judgments rendered by the Superior

Court of Guam. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-57 (2021)); 7 GCA §§

3107(b), 3108(a) (2005).

III. STANDARD OF REVIEW

[10] This court reviews questions of law de novo. Barrett-Anderson II, 2018 Guam 20 ¶ 12

(citing Guam Resorts, Inc. v. G.C. Corp., 2013 Guam 18 ¶ 33). Likewise, this court reviews issues

involving statutory interpretation de novo. Town House Dep’t Stores, Inc. v. Dep’t of Educ., 2012

Guam 25 ¶ 11 (citing Mendiola v. Bell, 2009 Guam 15 ¶ 11).

IV. ANALYSIS

A. The Legislature’s Grant of Power to DRT to Make Gaming Regulations Is Not an Unconstitutional Delegation of Legislative Authority

[11] Before reaching the issue on which the Superior Court decided the motion for summary

judgment—promulgation of the gaming regulations—we first address the OAG’s argument that

P.L. 26-052:4 is an unconstitutional delegation of legislative authority. The OAG asserts that the

Legislature’s grant of rulemaking power to DRT “contains no standards for regulating gaming

activities” and therefore “gives DRT unfettered discretion to determine how to regulate gaming

activities.” Appellee’s Br. at 13 (Dec. 9, 2020). The OAG argues that P.L. 26-052:4 improperly

delegates the Legislature’s lawmaking power to an executive branch agency. We disagree.

1 This opinion solely addresses the licensure of gaming or amusement devices under 3 GAR § 7114(a)(5). We express no judgment at this time over whether gaming devices may be licensed under a statutory provision, i.e., 11 GCA § 5205 or 11 GCA § 22202. Camacho v. Shimizu, 2021 Guam 22, Opinion Page 6 of 17

[12] It is rare for courts to invalidate legislative delegations to administrative agencies. The

United States Supreme Court has “upheld, again without deviation, Congress’ ability to delegate

power under broad standards.” Mistretta v. United States, 488 U.S. 361, 373-74 (1989) (collecting

cases); see also Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001). In the words of

one state court, “The Supreme Court’s jurisprudence demonstrates [the] bar to congressional

delegation is not a substantial one to meet.” Roe v. Replogle, 408 S.W.3d 759, 766 (Mo. 2013)

(en banc). This comports with our policy of presuming duly enacted legislation to be

constitutional, with all doubt resolved in favor of legality. See Underwood v. Guam Election

Comm’n, 2006 Guam 17 ¶¶ 51-52 (citations omitted).

[13] The “fundamental precept” of legislative delegation “is that the lawmaking function

belongs to Congress and may not be conveyed to another branch [of government] or entity.”

Loving v. United States, 517 U.S. 748, 758 (1996) (internal citation omitted). Thus, “[i]n a

delegation challenge, the constitutional question is whether the statute has delegated legislative

power to the agency.” Whitman, 531 U.S. at 472. There is a distinction, however, between “the

power to make law, which is non-delegable, and the authority to execute a law, which the

legislature may properly delegate to an administrative agency.” Amica Life Ins. Co. v. Wertz, 462

P.3d 51, 54 (Colo. 2020) (en banc). So while a legislature “generally cannot delegate its legislative

power to another Branch,” a legislature is not prevented from “obtaining the assistance of its

coordinate Branches” so long as such assistance is “fixed according to common sense and the

inherent necessities of the government co-ordination.” Mistretta, 488 U.S. at 372 (citations

omitted).

[14] There is no constitutional violation where a legislature “lay[s] down by legislative act an

intelligible principle to which the person or body authorized to [act] is directed to conform.” Camacho v. Shimizu, 2021 Guam 22, Opinion Page 7 of 17

Whitman, 531 U.S. at 472 (second alteration in original) (quoting J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 409 (1928)). “To articulate an intelligible principle to satisfy the

nondelegation doctrine, the legislature must ‘clearly delineate[] the general policy, the public

agency which is to apply it, and the boundaries of this delegated authority.’” Unum Life Ins. Co.

v. District of Columbia, 238 A.3d 222, 232 (D.C. Ct. App. 2020) (alteration in original) (quoting

Mistretta, 488 U.S. at 372-73); see also People v. Holmes, 959 P.2d 406, 409-10 (Colo. 1998) (en

banc) (rephrasing intelligible principle test as “what job must be done, who must do it, and the

scope of [the] authority” (quoting Swisher v. Brown, 402 P.2d 621, 626 (Colo. 1965) (en banc)).

Here, P.L. 26-052:4 sets forth a general policy—regulating gaming activities legal under Guam

law as of August 1, 2001—and tasks DRT as the agency to apply that policy. The closer question

is whether, as the OAG contends, P.L. 26-052:4 grants DRT “unfettered discretion”—in other

words, a lack of adequate boundaries to constrain DRT’s discretion. See Appellee’s Br. at 12-13.

[15] Public Law 26-052:4 offers little specific guidance on how DRT should accomplish the

legislative will. However, the degree to which a legislative delegation “must specify its policies

and standards . . . is not capable of precise definition.” Lichter v. United States, 334 U.S. 742, 779

(1948). The U.S. Supreme Court generally affords Congress significant leeway to delegate in

seemingly vague terms. For instance, the Supreme Court has upheld delegations where an agency

was tasked with achieving “‘just and reasonable rates’ for sales of natural gas,” “prices yielding a

‘fair return’ or the ‘fair value’ of property,” or “‘fair and reasonable’ rent for premises,” despite

minimal guidance on how the agency should accomplish these tasks. Id. at 786 (internal citations

omitted) (collecting cases); see also Levine v. Whalen, 349 N.E.2d 820, 823-24 (N.Y. 1976)

(collecting similar New York cases). Thus, a legislative delegation to an executive agency is not

unconstitutional or inorganic just because the enabling statute could be more specific. See Camacho v. Shimizu, 2021 Guam 22, Opinion Page 8 of 17

Whitman, 531 U.S. at 475 (“[W]e did not require [an enabling] statute to decree how ‘imminent’

was too imminent, or how ‘necessary’ was necessary enough . . . .”); Nat’l Rifle Ass’n v. Brady,

914 F.2d 475, 479 (4th Cir. 1990) (“Because [the statute] authorizes the Secretary to promulgate

those regulations which are ‘necessary,’ it almost inevitably confers some measure of discretion

to determine what regulations are in fact ‘necessary.’”); see also Owens v. Republic of Sudan, 531

F.3d 884, 893 (D.C. Cir. 2008) (upholding delegation to U.S. Secretary of State to address

international acts of terrorism despite enabling statute’s failure to define “international acts of

terrorism”).

[16] With these principles in mind, we turn to the mandate of P.L. 26-052:4. The statute directs

DRT “to promulgate necessary rules and regulations to create a comprehensive regulatory scheme

to regulate all gaming activities on Guam; provided, that the rules and regulations shall restrict

gaming activities to those authorized on Guam as of August 1, 2001.” P.L. 26-052:4. The term

“necessary” is not defined in the statute, but given the cases exemplified above, determining what

is “necessary” is committed permissibly to DRT’s expertise. The second clause of P.L. 26-052:4

expressly limits the gaming activities DRT may regulate, specifically, those gaming activities

authorized on Guam as of August 1, 2001.2 This creates a relevant boundary on DRT’s regulatory

power. Cf. Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 445 (5th Cir. 2020) (statutory limitation

on class of things to be regulated “ha[s] the effect of constricting the [agency’s] discretion to a

narrow and defined category.” (quoting United States v. Ambert, 561 F.3d 1202, 1214 (11th Cir.

2009))).

2 The OAG contends that no electronic gaming activities were authorized by statute on Guam on August 1, 2001. Appellee’s Br. at 15 (Dec. 9, 2020). However, we need not resolve this argument here. Whether DRT regulated beyond the bounds of its delegated power does not bear on whether the Legislature’s action—the delegation to DRT— was unconstitutional or inorganic. And it is unnecessary to our holding here to determine whether DRT regulated beyond the bounds of its delegated power, as we resolve this case on other grounds. See infra Part IV(B), (C); see also Unpingco v. Derry, 2021 Guam 1 ¶ 21 (“[A] court will not address issues unnecessary to the resolution of the case before it.” (quoting Hemlani v. Hemlani, 2015 Guam 16 ¶ 33)). Camacho v. Shimizu, 2021 Guam 22, Opinion Page 9 of 17

[17] Given the permissive standards applied by other courts, we are persuaded that no

impermissible delegation occurred here. We hold that P.L. 26-052:4’s language restricting DRT

to creating only “necessary” gaming regulations, and limiting the class of gaming activities DRT

may regulate, sufficiently fetters DRT’s regulatory discretion. Because the legislative grant of

power has sufficient boundaries, we discern an “intelligible principle” in P.L. 26-052:4 and hold

the legislative delegation to DRT constitutional and organic.

B. DRT’s Failure to Comply with the AAL Rendered the Gaming Regulations Void

[18] Although the Legislature’s delegation to DRT was not unconstitutional, this holding does

not render DRT’s gaming regulations valid automatically. We must next determine whether the

gaming regulations complied with the AAL or whether, as Guam Music contends, the gaming

regulations were exempted from the AAL.

[19] The Superior Court, in granting summary judgment for the OAG, determined that DRT’s

“promulgation” of the gaming regulations violated several provisions of the AAL. See RA, tab

178 at 6-8 (Dec. & Order, Mar. 13, 2020). DRT evidently failed to (1) provide notice of public

hearing in a newspaper of general circulation in Guam, contravening 5 GCA § 9301(a); (2) hold a

public hearing, contravening 5 GCA § 9301(b); and (3) provide an economic impact statement for

its regulations, contravening 5 GCA § 9301(d). See id. at 7. The Superior Court therefore applied

5 GCA § 9303(c), providing “[n]o rule shall be effective until after compliance with the provisions

of [the AAL],” to conclude that DRT’s non-compliance rendered the gaming regulations void. See

id. at 7-8; see also Barrett-Anderson I, 2015 Guam 20 ¶ 24 (court may declare agency rule invalid

if it finds rule “was adopted without compliance with statutory rule-making procedures” (quoting

5 GCA § 9309(b) (2005))). Guam Music acknowledges DRT did not comply with the AAL but

argues P.L. 26-052:4’s use of the statutory phrase “notwithstanding any other provision of law” Camacho v. Shimizu, 2021 Guam 22, Opinion Page 10 of 17

means DRT was never required to comply with the AAL. See Appellant’s Br. at 9-10 (Oct. 19,

2020).

[20] “When interpreting a statute, ‘the plain language of a statute must be the starting point.’”

Barrett-Anderson I, 2015 Guam 20 ¶ 23 (quoting Aguon v. Gutierrez, 2002 Guam 14 ¶ 6). Black’s

Law Dictionary defines the word “notwithstanding” to mean “despite; in spite of.”

Notwithstanding, Black’s Law Dictionary (11th ed. 2019); see also Notwithstanding, Merriam-

Webster, https://www.merriam-webster.com/dictionary/notwithstanding (last visited Dec. 15,

2021) (defining “notwithstanding” to mean “despite”). The plain meaning of the phrase

“notwithstanding any other provision of law” is “despite any other provision of law.” Guam Music

thus argues that this language “means what it says,” Appellant’s Reply Br. at 3 (Dec. 23, 2020)—

that it exempts DRT from complying with any other provision of law, including the AAL.

[21] But courts typically construe “notwithstanding” clauses to supersede only conflicting

provisions of law. See, e.g., United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007)

(“[S]tatutory ‘notwithstanding’ clauses broadly sweep aside potentially conflicting laws.”);

Shoshone Indian Tribe of Wind River Rsrv. v. United States, 364 F.3d 1339, 1346 (Fed. Cir. 2004)

(“The introductory phrase ‘[n]otwithstanding any other provision of law’ connotes a legislative

intent to displace any other provision of law that is contrary to the Act . . . .” (alteration in original));

State v. Zimmer, 880 N.Y.S.2d 813 814 (App. Div. 2009) (“The phrase ‘[n]otwithstanding any

other provision of law’ . . . ‘clearly supersedes any inconsistent provisions of state law[.]’”

(alteration in original) (emphasis omitted)). A notwithstanding clause does not excuse compliance

with non-conflicting laws. See, e.g., Arias v. Superior Court, 209 P.3d 923, 931 (Cal. 2009) (“‘The

statutory phrase “notwithstanding any other provision of law” . . . declares the legislative intent to

override all contrary law[,]’ . . . [meaning] only those provisions of law that conflict with the act’s Camacho v. Shimizu, 2021 Guam 22, Opinion Page 11 of 17

provisions—not, as defendants contend, every provision of law . . . .”); United States v. Holy Land

Found. for Relief & Dev., 722 F.3d 677, 689 (5th Cir. 2013) (“The ‘notwithstanding’ clause should

not be read to override the operation of other statutory provisions that do not interfere with [the

statute’s] stated purpose.”).

[22] We perceive no conflict between P.L. 26-052:4 and the AAL because DRT could have

complied with both P.L. 26-052:4 and the AAL. The mandate of P.L. 26-052:4 directs DRT “to

promulgate necessary rules and regulations to create a comprehensive regulatory scheme to

regulate all gaming activities on Guam,” P.L. 26-052:4, while the AAL provides for a “uniform

method of making, adopting, promulgating, filing and publishing rules by all agencies of [Guam],

to permit public participation therein and provide a method of making rules readily accessible to

the public,” 5 GCA § 9300 (2005). Nothing in the AAL explicitly or implicitly prevents DRT

from promulgating gaming regulations, and nothing in the text of P.L. 26-052:4 expresses a

legislative intent for DRT to be exempted from the AAL. And our review of the legislative history

of P.L. 26-052:4 reveals no references to the AAL generally or to its specific rule-making

requirements.

[23] Generally, if any interpretation of two allegedly conflicting statutes permits both statutes

to stand, “[a] court must adopt that interpretation, ‘absent a clearly expressed congressional

intention to the contrary.’” Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs, 619

F.3d 1289, 1299 (11th Cir. 2010) (quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1266

(11th Cir. 2006)); see also Kosmatka v. Safety Resp. Div. of N.D. State Highway Dep’t, 196

N.W.2d 402, 404-05 (N.D. 1972) (“It is fundamental that when two statutes relating to the same

subject matter appear to be in conflict, they should be construed whenever possible to give effect

to both statutes if this can be done without doing violence to either.”); Paquin v. N. Mich. Univ., Camacho v. Shimizu, 2021 Guam 22, Opinion Page 12 of 17

262 N.W.2d 672, 673 (Mich. Ct. App. 1978) (similar). We elect such an interpretation here. We

interpret the “notwithstanding any other provision of law” language of P.L. 26-052:4 to apply only

to laws that would conflict with the purpose of that statute: permitting DRT to promulgate

necessary rules and regulations to regulate gaming activities. The AAL does not conflict with that

purpose. Therefore, the “notwithstanding any other provision of law” language does not exempt

DRT from complying with the AAL. The trial court did not err in voiding the gaming regulations

on this basis.

C. Subsequent Legislative Enactments Did Not Cure or Validate the Gaming Regulations

[24] Finally, Guam Music contends that even if DRT’s gaming regulations were initially

invalid, they were cured or validated by two subsequent legislative enactments: P.L. 27-077 and

P.L. 32-060. See Appellant’s Br. at 15-20. We disagree.

[25] Guam Music correctly asserts that a legislature has the power to cure previously invalid

agency regulations by incorporating those regulations into a new law. See S. Cal. Gas Co. v. Pub.

Utils. Comm’n, 695 P.2d 186, 188 (Cal. 1985) (“[T]he Legislature may supply retroactively,

through a curative or validating act, any authority it could have provided prospectively through an

enabling act.”); Thomas v. Network Sols., Inc., 176 F.3d 500, 506 (D.C. Cir. 1999) (“[L]egislation

may confirm and render lawful otherwise unlawful federal agency actions . . . .”). Subsequent

legislation can cure a prior invalid agency action if “the legislature originally had the power to

authorize the acts done or to confer the powers exercised, and . . . contracts are not impaired nor

vested rights disturbed.” State ex rel. Tomasic v. Kansas City, 636 P.2d 760, 775 (Kan. 1981)

(citing Beeler & Campbell Supply Co. v. Warren, 100 P.2d 700 (Kan. 1940)); see also Priest v.

Can. Life Assurance Co., 446 N.W.2d 352, 354 (Mich. Ct. App. 1989) (per curiam) (similar);

Hewitt v. Rincon Del Diablo Mun. Water Dist., 165 Cal. Rptr. 545, 552 (Ct. App. 1980) (similar). Camacho v. Shimizu, 2021 Guam 22, Opinion Page 13 of 17

[26] We agree with Guam Music that the two requirements articulated by State ex rel. Tomasic

v. Kansas City, 636 P.2d 760 (Kan. 1981), and similar cases are satisfied here. First, as we held

above, the Legislature has the power to delegate the creation of gaming regulations to DRT, subject

to constitutional limitations on that delegation. Likewise, the Legislature undoubtedly has the

power to create gaming laws by its own legislative enactment. See 48 U.S.C.A. § 1423a (Westlaw

through Pub. L. 117-57 (2021)) (“The legislative power of Guam shall extend to all rightful

subjects of legislation not inconsistent with the provisions of this chapter and the laws of the United

States applicable to Guam.”); Guam Greyhound, Inc. v. Brizill, 2008 Guam 13 ¶ 18 (recognizing

Guam Legislature’s inherent lawmaking powers). Second, nothing in the record on appeal

indicates that the legislative ratification of gaming regulations would impair contracts or other

vested rights, nor has the OAG argued to the contrary. We therefore conclude that the Legislature

has the power to ratify DRT’s gaming regulations.

[27] However, while the Legislature may ratify DRT’s gaming regulations, we cannot conclude

the Legislature did so with P.L. 27-077 or P.L. 32-060. A legislative ratification requires a

legislature to evince a clear intent to ratify. See, e.g., EEOC v. CBS, Inc., 743 F.2d 969, 974 (2d

Cir. 1984) (“[R]atifying legislation must recognize that the actions involved were unauthorized

when taken and must also expressly ratify those actions in clear and unequivocal language.”);

People v. Reedy, 708 N.E.2d 1114, 1120 (Ill. 1999) (curative legislation “must exhibit on its face

evidence that it is intended to cure or validate defective legislation”); see also Greene v. McElroy,

360 U.S. 474, 506-07 (1959) (“acquiescence or nonaction” by legislature not sufficient to

constitute ratification).

[28] Our review of P.L. 27-077 and P.L. 32-060 reveals no evidence that the Legislature

intended to ratify DRT’s gaming regulations. Public Law 27-077 provides: Camacho v. Shimizu, 2021 Guam 22, Opinion Page 14 of 17

All rules and regulations or amendments to rules and regulations promulgated by any Director, and/or board for departments, agencies, and instrumentalities of the government of Guam, pursuant to specific statute or through the Administrative Adjudication Act, having been transmitted to and received by the Legislative Secretary of I Liheslaturan Guåhan prior to the commencement of I Mina’Bente Siete Na Liheslaturan Guåhan, and not otherwise acted upon, shall be codified and published as provided for in this Act.

P.L. 27-077:1. We find nothing in this text or in the statute’s legislative history to suggest the

Legislature specifically intended to ratify DRT’s gaming regulations; nothing in the text or history

of the statute mentions these regulations specifically or gaming activities generally. Furthermore,

P.L. 27-077 provides for the codification of promulgated rules and regulations. As the OAG notes,

to “promulgate” means “to declare or announce publicly; to proclaim” or “to make known by open

declaration; to announce officially.” Appellee’s Br. at 20 (quoting Black’s Law Dictionary 1231

(7th ed. 1999); Webster’s Third New Int’l Dictionary 1816 (1986)). However, DRT failed to

provide notice of public hearing in a newspaper of general circulation in Guam and failed to hold

a public hearing. “Promulgation,” then, is precisely what DRT failed to do. Even if we assumed

that P.L. 27-077 ratified all properly promulgated regulations, the gaming regulations would not

qualify because they were not promulgated under the AAL. We hold that P.L. 27-077 did not

ratify DRT’s gaming regulations.

[29] Likewise, we find nothing in P.L. 32-060 to evince the Legislature’s intent to ratify DRT’s

gaming regulations. Unlike P.L. 27-077, P.L. 32-060 does explicitly mention gaming activities.

The legislative intent section of P.L. 32-060 provides: “I Liheslatura intends to place in statute the

policy of regulating gaming activities allowed by law, collecting fees and taxes that would be due

from duly licensed operators, and making funds available for improvements to Guam’s sporting

facilities.” P.L. 32-060:1. Section 2 of that law, later codified at 11 GCA § 5205, defines the

“gaming activities authorized in Guam” and includes “[a]ll other limited gaming activities as Camacho v. Shimizu, 2021 Guam 22, Opinion Page 15 of 17

authorized pursuant to statute.” P.L. 32-060:2; 11 GCA § 5205(a)(3) (as amended by P.L. 34-

015:3 (June 8, 2017). Finally, P.L. 32-060 makes the following finding: “I Liheslaturan Guåhan

finds that a variety of different gaming and licensed gaming devices and activities are currently in

existence and are operated legally and regularly in Guam, including devices that have been

licensed twice by the current administration.” P.L. 32-060:3. While we agree with Guam Music

that this language suggests the Legislature intended for certain gaming devices and activities to be

legal in Guam, this language cuts against Guam Music’s position regarding ratification. The law

operates from the position that certain regulated gaming activities are “allowed by law” and

“currently in existence and [operating] legally.” P.L. 32-060:1, 3. However, a legislative

ratification requires recognition that the “actions involved were unauthorized when taken.” CBS,

Inc., 743 F.2d at 974. Public Law 32-060 suggests the opposite; we read this law as assuming

these gaming devices were operated and licensed legally, which assumes the regulations providing

for their operation and licensure were valid. If the Legislature believed the regulations were valid,

then it could not have intended to ratify the regulations; there would be no need to do so.

[30] A legislative ratification requires an express ratification, in “clear and unequivocal

language.” Id. Although we recognize P.L. 32-060 “intend[ed] to place in statute the policy of

regulating gaming activities allowed by law,” P.L. 32-060:1, we find this language ambiguous. It

is not clear whether “the policy of regulating gaming activities” was intended to refer to DRT’s

gaming regulations specifically; once again, there are no obvious references in the law’s text or

legislative history to the regulations generally, or to 3 GAR § 7114(a)(5) specifically. But had the

Legislature intended P.L. 32-060 to ratify the gaming regulations, it would have clarified that

intention. See Port Transp., Stevedore, & Terminal Emps. v. Guam Civil Serv. Comm’n (Port

Auth. of Guam), 2018 Guam 18 ¶ 17 (recognizing general assumption that “a legislature knows Camacho v. Shimizu, 2021 Guam 22, Opinion Page 16 of 17

existing legislation and intends a continuity of policy except when it clearly and affirmatively

indicates a change”); see also 2B Norman J. Singer & Shambie Singer, Sutherland Statutory

Construction § 56:2 (7th ed. 2002). Accordingly, we hold that P.L. 32-060 did not ratify DRT’s

gaming regulations either.

V. CONCLUSION

[31] We hold that the Legislature’s delegation of rulemaking power to DRT was not an

unconstitutional delegation of legislative authority. However, because DRT’s purported gaming

regulations were not adopted in compliance with the AAL as required, and because the purported

gaming regulations were not ratified by subsequent legislative enactments, we AFFIRM the trial

court’s judgment that DRT’s gaming regulations, and licenses issued under those regulations, are

void.

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

/s/ F. PHILIP CARBULLIDO Chief Justice