FILED.
SUPER~ORiCOURT
1 OF GUAM 2 2019 HAY 21., ~: ~
3 CLER~0~:~~RV
4 By 5 6 7 IN THE SUPERIOR COURT OF GUAM 8 9 PEOPLE OF GUAM, CRIMINAL CASE NO.: CM0431-17
10 vs. 11 DECISION AND ORDER DAVID J. SABLAN, 12 DOB: 11/06/1953 [1] GHURA’s Motion for Reconsideration
13 CECILE B. SUDA, 14 DOB: 09/22/1957 15 MICHAEL J. DUENAS, 16 DOB: 04/30/1954 17 ROLAND SELVIDGE, 18 DOB: 08/04/1949 19 JOHN ILAO, CRIMINAL CASE NO.:CM0431-17-O1 20 DOB: 02/16/1967 21 DEANNE TORRE 22 DOB: 04/07/1970 CRIMINAL CASE NO.: CM0431-17-02 23 24 ROSIE BLAS, CRIMINAL CASE NO.: CM0431-17-03 25 DOB: 07/02/1962 26 DEFENDANTS.
27 28 CM043 1-17-01 People v. John Ilao Q R I GI NA L CM0431-17 People v. David J. Sablan et al.
CM043 1-17-02 People v. Deanne Torre Page 1 of 6 CM043 1-17-03 People V. Rosie Blas 1 INTRODUCTION 2 This matter came before the Honorable Anita A. Sukola on April 16, 2019, for a hearing on 3 Guam Housing and Urban Renewal Authority’s (“GHURA”) Motion for Reconsideration of the 4 Court’s December 14, 2018 Decision and Order denying GHURA’s Motion to Quash Subpoena of 5 Legal Counsel. Attorney Cynthia V. Ecube appears on behalf of GHURA. Assisiant Public 6 Defender William Bischoff represents Defendant Roland Selvidge and filed an Opposition in this 7 matter. Three other defendants filed joinders to Selvidge’s Opposition. These defendants are: (1) 8 Rosie Bias, represented by Attorney Jacqueline Terlaje (2) Cecile B. Suda, represented by 9 Attorney Curtis C. Van de veld, and (3) David J. Sablan, represented by Attorney Samuel S. Teker. 10 BACKGROUND 11 This matter arises from GHURA’s Motion for Reconsideration of the Court’s December 12 14, 2018 Decision and Order. In that Decision and Order, the Court provided a detailed and 13 thorough factual background of this case. At this time the Court will provide a protracted 14 background section containing the particular facts relevant to the instant motion. 15 The People filed the Complaint in this matter in the Superior Court on July 24, 2017, 16 alleging forty-seven (47) separate crimes which include: direct violations of the Guam Open 17 Government Law (“OGL”), official misconduct, and conspiracy to violate the OGL and commit 18 official misconduct. The charges are related to three separate events that allegedly occurred during 19 the period between December 2011 and July 2015. The alleged events occurred when the various 20 Defendants served as Commissioners of the Guam Housing and Urban Development Authority
21 (“GHURA”) Board of Commissioners. 22 Defendant Selvidge has evoked the advice of counsel defense. Selvidge argues that he
23 cannot be found culpable because he was acting in reliance on legal advice from GHURA’s 24 counsel when he committed the alleged overt acts which led to the charges against him. On August
25 28, 2018, Selvidge filed a Sunshine Act Request upon GHURA, seeking “[t]he email or emails 26 referenced in the attached billing from Attorney Anthony C. Perez to GHURA dated 8/25/15 27 described as ‘re: propriety of working sessions.” Sunshine Act Request (Aug. 28, 2018). GHURA 28 CM0431-17 People v. David J. Sablan et al. Page 2 of 6 CM043 1-17-01 People v. John Ilao CM043 1-17-02 People v. Deanne Torre 1 responded on August 31, 2018, denying the Sunshine Act Request on the grounds that the 2 documents sought are protected from public disclosure pursuant to 5 G.C.A. § 10108. Response
: 3 (Aug. 31, 2018). Section 10108 provides, in relevant part:
4 Except as provided in § 10109 of this Chapter, nothing in this Chapter shall be 5 construed to require disclosure of records that are any of the following: 6 (a) Records pertaining to pending litigation to which the agency is a party, until the pending litigation has been.finally adjudicated or otherwise settled.
7 (i) All existing privileges or confidential records or other information expressly 8 protected under the law shall not be abrogated by this Act.
5 G.C.A. § 10108.
10 On September 6, 2018, Selvidge filed a Subpoena Duces Tecum on Melinda I. Taitano, in 11 her capacity as an employee of GHURA, ordering her to appear before the Superior Court of 12 Guam on October 3, 2018, and to bring with her the following documents: (1) printouts of the 13 email or emails referenced in the attached billing from Attorney Anthony C. Perez to GHURA 14 dated 8/25/15 described as “emails with Millie re: propriety of working sessions:” (2) the Sunshine 15 Act request which was denied in the attached August 31, 2018, letter from GHURA counsel 16 Cynthia V. Ecube. Subpoena Duces Tecum (Sept. 6, 2018).
17 Both of the subpoenas at issue sought information protected by attorney-client privilege:
18 the subpoena to Melinda L. Taitano sought documentary evidence regarding advice of counsel, 19 while the subpoena to Attorney Perez sought testimonial evidence of such advice. Both requests 20 turned upon the same issue of law, which is a determination of who holds the attorney-client 21 privilege, and consequently who has the authority to waive such privilege. GHURA argued that it, 22 as an organization, is the sole holder of the privilege. Defendant Selvidge argued the individual 23 members of the board are the sole holders of the privilege.
24 On December 14, 2018, the Court issued a Decision and Order denying GHURA’s Motion 25 to Quash Subpoena of Legal Counsel. The Court found that GHURA and Selvidge jointly hold the 26 attorney-client privilege regarding legal advice rendered during Selvidge’s time on the GHURA 27 board. On January 9, 2019, GHURA filed a Motion for Reconsideration, arguing that the 28 CM0431-17 People v. David J. Sablan et al. Pac~e 3 of 6 CM043 1-17-01 People v. John Ilao CM043 1-17-02 People v. Deanne Torre 1 documents requested fall outside the scope of the alleged overt acts and are therefore irrelevant 2 and not exculpatory. Mot. for Recons. at 3 (Jan. 9, 2019). Specifically, GHURA states that the 3 charges against Selvidge are based upon overt acts occurring during two specified periods: (1) 4 December 2011 to January 2012; and (2) April 2015 to July 2015, and the subpoenas seek the 5 production of emails from Attorney Anthony Perez dated August 25, 2015. Id. at 4. This email was 6 written after the alleged overt acts, and GHURA argues that it could not possibly contain evidence 7 which would further Selvidge’s advice of counsel defense. Id. GHURA argues that this irrelevancy 8 of the email argument is based on material facts not taken into consideration by the Court in 9 rendering its decision. Ici± 10 DISCUSSION 11 A motion for reconsideration brought under Rule 1.1(d) of the Local Rules of the Superior 12 Court of Guam is appropriate on the grounds of (1) a material difference in fact or law from that 13 presented to the court before such decision that in the exercise of reasonable diligence could not 14 have been known to the party moving for reconsideration at the time of such decision, or (2) the 15 emergence of new material facts or a change of law occurring after the time of such decision, or (3) a manifest showing of a failure to consider material facts presented to the Court before such 16 decision. Although this rule allows the Court to reconsider and amend a previous order, it is an 17 “extraordinary remedy, to be used sparingly in the interest of finality and conservation of judicial 18 resources.” Guam Bar Ethics Comm. v. Maquera, 2001 Guam 20 ¶9 (citing Kona Enterprises, Inc. 19 v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Importantly, a party moving for 20 reconsideration cannot use the motion “to present a new legal theory, raise arguments for the first 21 time, or present evidence for the first time when they could have reasonably been raised earlier.” 22 ~ (citing Ward, 1998 Guam 1 ¶ 13). 23 a. GHURA’s present argument could have been raised in its initial brief. 24 This matter was fully briefed by the parties. GHURA filed a Motion to Quash on 25 November 5, 2018. GHURA’s sole argument is that compliance with the subpoenas would be 26 unreasonable and oppressive because the intent was to elicit confidential communications which 27 were protected by attorney-client privilege. Mot. to Quash at 4 (Nov. 5, 2018). Nowhere in this 28 CM0431-17 People v. David J. Sablan et al. Page 4 of 6 CM043 1-17-01 People v. John Ilao CM043 1-17-02 People v. Deanne Torre 1 motion does GHURA argue that the information sought is irrelevant to Selvidge’s defense. 2 Selvidge filed an Opposition on November 15, 2018, replying to GHURA’s arguments concerning 3 attorney-client privilege. Opp’n to Mot. to Quash (Nov. 15, 2018). GHURA then filed a Reply on 4 November 26, 2018. Reply (Nov. 26, 2018). Again, GHURA’s sole argument was that the 5 information was protected by attorney-client privilege. 6 In filing its Motion for Reconsideration based on the argument that the information sought 7 is irrelevant, GHURA is offering a new argument that could have reasonably been raised in its 8 initial motion. The Supreme Court of Guam has explicitly stated that this is not a proper basis for a 9 motion to reconsider. Guam Bar Ethics Committee, 2001 Guam 20 at ¶ 9. The Court therefore 10 withholds analysis of the merits of GHURA’s present argument. 11 b. No new relevant evidence has arisen to justify reconsideration. 12 While not argued in its Motion for Reconsideration, GHURA argues in its reply brief that 13 new evidence has emerged subsequent to the Court’s December 14, 2018 Decision and Order. 14 Reply at 6. A motion may be renewed on the basis that new material facts have emerged after the 15 time of the initial decision. CR 1.1(d)(2). GHURA’s conflict counsel, Cynthia Ecube, states that on 16 January 23, 2019, counsel for Sablan approached her and stated that he had received new evidence 17 or information. Reply at 7. Such evidence is an email from GHURA’ s former legal counsel which 18 related to the issue of “working sessions.” Id. GHURA states that this evidence “may be relevant 19 in the pending proceedings” and therefore “satisfies the requirement under CR1.1(d)(2) thus 20 warranting reconsideration of the Court’s December 14, 2018 Decision and Order.” Id. 21 GHURA does not explain how this new evidence would affect the COurt’s prior decision. 22 While this email may be relevant to the ultimate disposition of this case, it is not relevant to 23 GHURA’s Motion to Quash. A motion to reconsider should not be granted unless the facts 24 discovered are of such a nature that they would probably change the outcome. $ç~ Infusion Res.. 25 Inc. v. Minimed, Inc., 351 F.3d 688, 696 (5th Cir. 2003). GHURA’s assertion, without supporting 26 explanation, that the email “may be relevant in the pending proceeding” is not sufficient to 27 28 CM0431-17 People v. David J. Sablan et al. Pa&e 5 of 6 CM0431-17-0.1 People v. John Ilao CM043 1-17-02 People v. Deanne Torre 1 convince the Court that the email would probably change the Court’s decision regarding 2 GHURA’s Motion to Quash. 3 CONCLUSION & ORDER 4 Based on the foregoing reasons, the Court hereby DENIES GHURA’s Motion for 5 Reconsideration;
This matter is set for Further Proceedings on ~// 7/iy at __________
12 SO ORDERED__________
~‘he Honc~rab1eAnita A. Sukola ~ 16 Judge, Superior Court of Guam 17 SERVICE VIA COURT BOX
18 I acknowledge that a copy of the original hereto was placed in the 19 courtboxof:
20 1~J~ Date:5I~1~4i9~Ti!fl~: ‘1~~ 21 ___________
22 Deputy Clerk~ Su~r Court of Guam
23 SERVICE VIA COURT BOX Received for Service 24 I acknowledge that a copy of the oriqjnal hereto was placed in the ______________________________M 25 _____________ _______ 20
26 Date:cfr~b91iipe~ ‘~4’~3~ Marshal, Superior Court 27 (~ Deputy Clerk~ Supei~r Court of Guam Guam
28 CM0431-17 People v. David 3. Sablan et al. Pao~e 6 of 6 CM043 1-17-01 People v. John Ilao CM043 1-17-02 People v. Deanne Torre