Sule v. Guam Board of Examiners for Dentistry

Opinion

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3 IN THE SUPERIOR COURT OF GUAM (:1 [; -:\: \ ;- COURT --~--- 4

5 ) 6 HUGH L. SULE, D.D.S., ) CNIL CASE NO. CV1785-09 ) 7 ) Plaintiff, 8 ) DECISION AND ORDER ON v. ) DEFENDANT'S MOTION TO DISMISS 9 ) GUAM BOARD OF EXAMINERS FOR ) to DENTISTRY, et al., ) 11 ) Defendants. ) 12 ) I3

14 INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena, IlIon September 12,2011 16 on the Defendants' Motion to Dismiss. Assistant Attorney General David J. Highsmi 17 represented the Defendants. Attorney Douglas B. Moylan represented Plaintiff. Havin 18 considered the parties' written and oral arguments and the applicable law the Court now issue 19 its Decision and Order. 20 FACTUAL HISTORY 21 This case arises out of Plaintiff's Complaint for Declaratory and Injunctive Relief an 22 Enforcement of Proper Government Spending filed on November 27, 2009. In his complaint 23 Plaintiff Hugh Sule, a licensed, practicing dentist within the Territory of Guam, alleges on 24 cause of action against the Guam Board of Examiners for Dentistry ("Dental Board") and 25 second cause of action against the individual members of the Dental Board. The first cause 0 26 action stems from disciplinary proceedings initiated by the Dental Board and involving Plaintiff. 27 On September 16, 2009, the Dental Board held a regular meeting and voted to bring charge 28 against Plaintiff based on Plaintiff's alleged failure to disclose the existence of a pendin

-1- malpractice case on Plaintiff s application for renewal of his dentistry license. A hearing on th 2 charges was held on November 4, 2009. Count I of Plaintiffs Complaint alleges that th 3 November 4 meeting violated the Open Government Law due to an improper meeting notice. 4 Based on this violation, Plaintiff argues that all action taken at the meeting is void and that 5 injunction should be issued requiring compliance with the Open Government Law by the Denta 6 Board and ongoing judicial oversight of Dental Board's actions. Counts II and III further alleg 7 that the Dental Board is required to conduct proceedings related to disciplinary matters i 8 "executive session" and that the Dental Board's failure to do so at the November 4th meeting 0 9 at the previous meeting on September 16, 2009, renders all action taken at those meetings void 10 Plaintiffs second cause of action alleges that the individual members of the Dental Board waste 11 taxpayer money by intentionally violating the Guam Open Government Law by not holdin 12 disciplinary proceedings on September 16,2009 and November 4,2009 in executive session. 13 After filing the Complaint, Plaintiff moved for a temporary restraining order ("TRO" 14 and pennanent injunction based on the allegations contained in Counts I-III. The Dental Boar 15 opposed the TRO application and also submitted the present motion to dismiss the Complaint fo 16 failure to state a claim under Guam Rule of Civil Procedure 12(b)(6). The parties did, however 17 stipulate to a temporary restraining order ("stipulated order") providing that Defendants woul 18 not meet on matters pertaining to Plaintiffs disciplinary matter until the Court heard the pendin 19 request for an injunction. The Defendants also conceded that the November 4th meeting was no 20 properly noticed and the Dental Board voided all action taken at that meeting. 21 The Court held a hearing on the application for a TRO and injunction and issued 22 Decision and Order on March 22, 2010 denying Plaintiffs application. The Court did no 23 mention the stipulated order in its decision nor did the court discuss the Defendant's motion t 24 dismiss. Plaintiff appealed the denial of the TRO. The Guam Supreme Court affinned th 25 decision, but vacated this court's discussion of Plaintiffs second cause of action relating to th 26 Proper Government Spending Act after finding that discussion to be irrelevant to the TR 27 analysis. The Guam Supreme Court then remanded the case to this Court for a detennination 0 28 the pending GRCP 12(b)(6) motion to dismiss and remaining substantive issues. The Defendant

-2- subsequently moved to dissolve the stipulated order. Following a hearing, this Court took th 2 matters involving the motion to dismiss and motion to dissolve the stipulated order unde 3 advisement. 4 DISCUSSION 5 Before reaching the substance of the present motion to dismiss, this Court addresse 6 certain procedural issues raised by the parties and their actions. First, Plaintiff argues in hi 7 opposition to the motion to dismiss that the Defendants' motion resembles an unsupporte 8 motion for summary judgment and is untimely. This Court finds nothing irregular about th 9 timing of the motion or any lack of supporting documents. See GUAM R. CIv. PROC. 12(b). Th 10 motion properly asserts that Plaintiffs Complaint fails to state a legal claim upon which relie II can be granted. This Court finds that the motion is substantively proper under Rule 12(b)(6). 12 The second preliminary matter relates to an argument asserted by Plaintiff relating t 13 defense counsel's ethical duties or violations. This issue is entirely unrelated to the presen 14 matters and will not be considered by this Court at this time. The issues currently before th 15 court are whether Plaintiffs Complaint should be dismissed and whether the stipulated TR 16 should be dissolved. Yet, appearing on the first page of Plaintiffs "Opposition to Motion t 17 Dismiss" is an argument relating to defense counsel's ethical duties of representation an 18 disqualification. Guam Rule of Civil Procedure 7(b)(1) states that "An application to the cou 19 for an order shall be by motion ...." (emphasis added). Plaintiff s argument regardin 20 representation, which is essentially a request for an Order to Show Cause, is not properly befor 21 this Court under GRCP 7(b)(1) or CVR 7.1 and will not be discussed further. 22 Finally, this Court notes that counsel for both parties have revealed a tendency to ignor 23 the requirements for filing motions and counsel are hereby admonished to abide by the rule 24 governing practice in the Superior Court of Guam. 25

26 Legal Standard 27 Rule 8(a) of the Guam Rules of Civil Procedure states that a pleading setting forth 28 claim for relief "shall contain ... a short and plain statement of the claim showing that th

-3- • • pleader is entitled to relief." A motion to dismiss under Rule 12(b)(6) tests the sufficiency ofth 2 complaint within the context of Rule 8(a). Rule 12(b)(6) is identical to Federal Rule 12(b)(6) an 3 therefore cases interpreting the federal rule are instructive. People v. Diaz, 2007 Guam 3, '14, n 4 4. 5 Dismissal pursuant to Rule 12(b)(6) "is not proper unless 'it appears beyond doubt tha 6 the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 7 First Hawaiian Bank v. Manley, 2007 Guam 2,9 (quoting Conley v. Gibson, 355 U.S. 41, 45 8 46, (1957)). The court's inquiry on a motion to dismiss is limited to the content of the complain 9 and the court should not dismiss merely because it doubts the plaintiff will prevail in the actio 10 or that the possibility of ultimate recovery is remote. Scheuer v. Rhodes, 416 U.S. 232, 23 11 (1974). In assessing the sufficiency of the plaintiffs claims, the court takes plausible fac 12 allegations in the complaint as true, while disregarding legal conclusions. See Ashcroft v. I bal 13 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 14 555 (2007). Dismissal of the complaint or any claim therein "can be based on the lack of 15 cognizable legal theory or the absence of sufficient facts alleged under a cognizable leg 16 theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696,699 (9th cir. 1990). See also Robertso 17 v. Dean Witter Reynolds, Inc., 749 F.2d530, 534 (9th Cir. 1984). Where a court grants a motio 18 to dismiss, "leave to amend should be granted 'unless the court determines that the allegation 0 19 other facts consistent with the challenged pleading could not possibly cure the deficiency." 20 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992) (quoting Schreibe 21 Distrib. Co. v. ServWell Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)). 22 Analysis 23

24 Defendants argue that Plaintiffs Complaint fails to state any cognizable legal theo 25 upon which relief may be granted and they therefore move to dismiss the complaint. Th 26 following analysis first examines Plaintiff's claims relating to the Defendants' alleged violatio 27 of the Open Government Law. The Court then discusses the sufficiency of Plaintiff's secon 28 cause of action relating to the Proper Government Spending Act.

-4- 1. • Violation of the Open Government Law • 2 a. Failure to Properly Notice the November 4, 2009 Meeting (Count I) 3

4 The first count in the Complaint states that the Dental Board failed to provide notice fo 5 the meeting of November 4,2009 as required by title 5, chapter 8, the Open Government Law 0 6 Guam ("Open Government Law"). See 5 G. C.A. § 8107. As such, Plaintiff asserts that all actio 7 taken at that meeting should be declared void and of no effect. In Count I, Plaintiff also reques 8 an injunction against Defendants pursuant to title 5, section 8115, subsections (e) and (t), whic 9 discuss penalties for any adjudged violation of the requirements outlined in chapter 8: 10 (e) The court shall permanently enjoin any person adjudged to have 11 violated this Chapter from further violating this Chapter. Each separate action 12 taken which is not in accordance with this Chapter shall constitute a separate violation. 13 (t) The fmal judgment or decree in each suit shall state that the court shall 14 retain jurisdiction over the parties and subject matter for a period of one (l) year 15 from date of entry and the court shall order the defendants to report in writing twice annually to the court of their compliance with this Chapter. 16 5 G.C.A. § 8115(e)-(t). Under subsection (e), the court must issue an injunction when a party i 17 found to have violated the Open Government Law. 18 Defendants admitted both at the hearing and in written papers submitted to this Court tha 19 the November 4th meeting was not properly noticed. Based on this improper notice, Defendants 20 on their own initiative, voided all action taken at that meeting. Based on Defendants' admissio 21 and subsequent action, this Court acknowledges Defendants' contention that Count I is moot 22 to Plaintiff's request that the action at the meeting be declared void. However, Defendants' 23 motion fails to address Plaintiff's properly pleaded claim for an injunction under section 811 24 and dismissal of this claim would not be proper. As there are no contested issues of fac 25 regarding the impropriety of the November 4th meeting, this Court finds that an injunction mu 26 be issued enjoining Defendants from any further action violating Guam's Open Governmen 27 Law. Moreover, this Court will retain jurisdiction over this case for a period of one year. Durin 28

-5- that time Defendants will be required to report to this Court twice in writing of their complianc 2 with the requirements under the Open Government Law. 3 b. Failure to Hold Meetings in Executive Session (Counts II & III) 4

5 Counts II and III of the Complaint allege that under 10 GCA § 12436(b) and 5 GCA 6 8111 the Defendants are required to conduct disciplinary proceedings in Executive Session an 7 that the Defendants' refusal to conduct the September 16th and November 4th disciplin 8 proceedings in executive session is grounds for voiding all action taken at those meetings an 9 justifies an injunction. Title 10 GCA § 12436 provides: 10 The Board shall comply with the requirements of the Open Government Law 11 (P.L. 13-35) but when the Board is preparing examinations, grading examinations, 12 discussing the eligibility of a person to be licensed to practice dentistry or reviewing evidence obtained at a hearing for disciplinary action the Board shall be 13 in executive session and may exclude the press and members of the public. 14 10 GCA §12436(b). On prior appeal in this very same case the Guam Supreme Court upheld thi 15 Court's determination that the plain language of the statute does not require the Dental Board t 16 hold meetings in executive session where those meetings involve disciplinary matters. Sule v 17 Guam Board of Examiners For Dentistry et. al. 2011 Guam 5 ~~ 24-25; Sule v. Guam Board 0 18 Examiners for Dentistry, Civil Case No. 1785-09, Decision and Order on Plaintiff's Ex Part 19 Application for Temporary Restraining Order and Permanent Injunction (March 22, 2010) 20 Because the Dental Boards' action was entirely proper, Counts II and III lack support in the la 21 and therefore fail to state a claim upon which relief can be granted. These claims are properl 22 dismissed with prejudice. 23

24 II Enforcement ofProper Government Spending Act

25 In his second and final cause of action Plaintiff argues that the Defendants' failure t 26 comply with the Open Government Law led to waste of taxpayer money applied to expense related to the September 16th and November 4th meetings and that the government is entitled t 27

28 reimbursement of those funds pursuant to title 5, section 7103. Section 7103 provides:

-6- • • Any taxpayer who is a resident of Guam shall have standing to sue the government of Guam and any officer, agent, contractor, or employee of the 2 Executive Branch of the government of Guam for the purpose of enjoining any 3 officer, agent, contractor, or employee of the Executive Branch of the government of Guam from expending money without proper appropriation, without proper 4 authority, illegally, or contrary to law, and to obtain a personal judgment in the 5 courts of Guam against such officers, agents, contractors, or employees of the government of Guam and in favor of the Government of Guam for the return to 6 the Government of Guam of any money which has been expended without proper appropriation, without proper authority, illegally, or contrary to law. 7

8 Defendants argue that this statute does not apply to the Dental Board or its individual membe

9 when those members are clearly acting within the scope of their employment.

10 In his opposition papers Plaintiff asserts a novel claim not found within his Complaint .

11 an attempt to defend against the motion to dismiss. Plaintiff properly argues that section 710

12 clearly applies where a government spends money in a manner contrary to law. But Plaintiff the

13 argues that because the November 4th meeting was improperly noticed, the meeting w

14 therefore contrary to law and any money spent in furtherance of that meeting constituted

15 illegal expenditure under section 7103. However, this argument relating to improper notice doe

16 not comport with the clear statement of claim embedded within Plaintiff's Complaint. The illeg

17 act upon which Plaintiff bases his second cause of action is the failure by the Defendants to hoI

18 the September 16th and November 4th meetings in executive session. The Complaint provides:

19 DEFENDANT BOARD MEMBERS have refused to hear in Executive Session evidence against PLAINTIFF on disciplinary matters on September 16, 2009 and 20 to conduct disciplinary hearings against PLAINTIFF in Executive Session on November 4, 2009 in compliance with the requirement of Executive Session 21 found in 10 G.C.A. § 12436(b), under the parameters set forth in the Open 22 Government Law, 5 G.C.A. § 8111.

23 (Complaint, p. 8, , 45). As discussed above, there is no legal authority that required the Den 24 Board to hold the meetings in executive session. Moreover, nowhere in the paragrap 25 constituting Plaintiff's second cause of action does Plaintiff refer to the Defendants' failure t 26 properly notice the meeting as a basis of that cause of action. Because Plaintiff's second cause 0 27 action lacks an allegation of improper acts by the Defendants it fails to state a claim upon whic 28 relief can be granted.

-7- Moreover, even assummg Plaintiff based this cause of action on the Defendants' 2 improper notice of the November 4th meeting it would still fail to state a claim. Plaintiff seeks t 3 hold the individual members of the Dental Board personally liable for wasting governmen 4 funds. However, the individual members of the Dental Board did not expend money withou 5 proper appropriation and any money spent in holding a disciplinary meeting is not contrary t 6 law, regardless of whether that meeting is later found to have been improperly noticed. Th 7 creation, membership, and delegated powers of the Dental Board are statutorily governed by th 8 Dental Practice Act. 10 GCA § 12430 et seq. Pursuant to the Act, the Dental Board is required t 9 conduct any disciplinary hearings involving dentists licensed to practice in Guam. Governmen 10 funds spent for the purpose of scheduling, providing notice and, as necessary, rescheduling 11 disciplinary hearing, are therefore spent not by the individual members of the Dental Board, bu 12 in accordance with the legal mandate of the Dental Board. To enjoin the Dental Board fro 13 conducting Plaintiffs disciplinary hearing or to fine its individual members for acting within th 14 scope of their employment in attempting to schedule such hearings would only serve to preven 15 the Dental Board from carrying out their legal mandate. The Proper Government Spending Ac 16 should not be interpreted so as to frustrate the work of the Government or its employees wher 17 they make every effort to fulfill their statutorily prescribed responsibilities. 18 Plaintiff's Second Cause of Action fails to state a claim upon which relief can be grante 19 and will therefore be dismissed with prejudice. 20 CONCLUSION 21 Based on the foregoing the Defendants' motion to dismiss is granted in part and denied i 22 part. Defendants' motion is GRANTED as to Plaintiffs request in Count I to void all actio 23 taken at the November 4,2009 meeting. Defendants' motion is GRANTED as to Counts II an 24 III. The motion is also GRANTED as to Plaintiff s Second Cause of Action. The abov 25 described portion of Count I, as well as Counts II and III of the First Cause of Action, and th 26 Second Cause of Action are hereby DISMISSED WITH PREJUDICE. 27 As there is no remaining claim that the action taken by the Dental Board at the Septembe 28 16, 2009 meeting was improper, the temporary restraining order stipulated to by the parties an

-8- signed by this Court dated December 16, 2009, is hereby DIS SOL VED and the Dental Boar 2 may commence the administrative proceeding involving Plaintiff.. 3 Defendants' motion is DENIED as to Plaintiffs claim for an injunction under Count 10 4 Plaintiffs Complaint. Based on Defendants' admission of all material facts contained in th 5 Complaint allegations on Count I, this court finds that Plaintiff is entitled to judgment on thi 6 claim. This Court will retain jurisdiction over this case for a period of one year following ent 7 of this Decision and Order on the docket. Defendants are hereby enjoined from taking any actio 8 in violation of title 5, chapter 8 of the Guam Code. Moreover, Defendants are ORDERED t 9 submit two written reports over a period of a year to this Court detailing their continuin 10 compliance with the provisions of chapter 8. The reports shall include a copy of the meetin 11 minutes along with other information relating to the steps taken by Defendants to en sur 12 compliance the Open Government Law. The first report is due on August 1, 2012. The secon 13 report is due on February 1,2013. On February 1,2013, if this Court finds that Defendants are i 14 compliance with the Open Government Law the case will be dismissed. 15 Plaintiff shall prepare a judgment consistent with this Decision and Order to be submitte

16 for this Court's signature. 17

18 It is SO ORDERED this 31 st day of January, 2012. 19

21 HONORABLE ALB 22

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