case illustrates that the Guam Legislature has used its authority over the structure and power of the judicial branch to shape the law in a manner that has influence over the outcome of a case filed in the Supreme Court.

Question No. 2:

Constitutional courts are defined by constitutions. Statutory courts are defined by statutes. The courts of Guam are either going to under a local statute or a Federal statute. How then does it promote judicial independence for the courts of Guam to be created by a Congress where the U.S. citizens of Guam do not have voting representation? Would it not be better for the local court system to be established by the local legislature where citizens do have voting representation?

Answer:

Guam's constitution is a Federal statute. Guam has not adopted its own constitution although it has had the authority to do so for the past twenty-five years. Guam's constitution, the Organic Act, was flawed from the start because it did not contain the foundation for a tri-partite system of local government. The only court specifically created by the Organic Act is the district court of Guam, which does not have jurisdiction over issues of local law. Under the Organic Act, the Legislature has plenary authority to establish local courts. Thus, the situation here is that one branch of government has unfettered control over another. This is the antithesis of judicial independence. H.R. 521 corrects the Organic Act flaw by properly creating a tri-partite system of local government, where each branch is independent and coequal.

In the absence of a constitution, all branches of the government of Guam are statutorily created. The executive and legislative branches are established by Federal statute, the Organic Act, and the local judiciary is established by local statute. To even the playing field and to create three independent branches of government, the local court system must be created by Federal statute. This is similar to the Federal model where one supreme instrument, the United States Constitution, creates all three branches.

The alternative, to await the enactment of a local constitution, is unacceptable given the uncertainty that exists between the branches of government and inherent political disputes. It is necessary that three independent branches be constitutionally created now. H.R. 521 properly creates a tri-partite system of local government in our present constitution, the Organic Act.

We must emphasize that judicial independence is gained from the inability of the other branches to manipulate the internal workings of the judicial branch. This is not to suggest that the judiciary should be completely immune from appropriate legislation. However, it should be at least as difficult for the Guam Legislature to manipulate the judiciary as it is for the Rhode Island Legislature to manipulate the Rhode Island judicial branch, or for the United States Congress to amend laws affecting the authority of the United States Supreme Court. As the case shown in the answer to question number one illustrates, presently all it takes is eight votes by the Legislature and attachment of a rider to an important bill to effectuate a change in the authority and the jurisdiction of the Guam Supreme Court.

We further point out that although Guam does not have a voting representative in Congress, our interests are represented by Delegate Robert Underwood. Delegate Underwood is a locally elected official. We are confident in his ability to adequately protect the interests of the people of Guam.

Question No. 3:

Are you in favor of enacting a constitution for Guam?

Answer:

While a constitution would be ideal, it may not be appropriate for the judiciary to take a specific position on this issue. It cannot be overlooked, however, that Guam has had twenty-five years to enact such an instrument, but has yet to do so. Whatever the founding instrument may be, whether a Federal statute, a commonwealth act, or a constitution, it should create a tri-partite system of government, wherein each branch is co-equal and independent to assure a complete system of checks and balances. Given the current political reality on Guam, the enactment of a constitution will not occur soon and the establishment of a tri-partite system should not be delayed as a result.

Question No. 4:

In the Federal system, the U.S. Congress statutorily establishes the Federal courts (district courts, appellate courts, patent courts, tax courts, etc...). If we take the model proposed in H.R. 521 (Section 1(a)) to the Federal level, Chief Justice

Rehnquist, rather than Congress would have the power to unilaterally determine the structure and division on the court system. Why should we adopt a model for Guam that we would never adopt at the Federal level?

Answer:

Article III Section 1 of the United States Constitution provides that the judicial power of the United States is vested in one Supreme Court and in such inferior courts as the Congress may establish. The goal of H.R. 521 is to parallel the local system to the Federal model, wherein the judicial power of Guam should be vested in the Supreme Court of Guam.

The current language of H.R. 521 which deviates from the Federal constitutional model mirrors Title 7 Guam Code Annotated §2101, which provides "[t]he Supreme Court of Guam may, by rules of court, create such divisions of the Supreme and Superior Courts as may be desirable...." This section reflects the Legislature's intent to defer to the Supreme Court of Guam the authority to determine the structure and divisions of the local court system. The current language of H.R. 521, which vests in the Supreme Court of Guam the power to create divisions of the Superior Court of Guam, reflects the power the Legislature has already conferred to the Supreme Court.

The Legislature's grant of authority to the Supreme Court of Guam in this regard is not without precedent. The State of Vermont has similarly vested in its Supreme Court the power to create by judicial rules geographical and functional divisions within its court system. Vt. Const. chpt. 2, §31. We note, though, that the Vermont Legislature shares this function.

To the extent that the language of H.R. 521 can also be read as granting the Supreme Court of Guam the power to create other local courts, it may have been a reaction to the Legislature's stripping of the court's authority. Admittedly, no other jurisdiction at the Federal or state level vests within its Supreme Court the power to create inferior courts. Thus, the amendment to H.R. 521 that I proposed addresses this matter, deleting this section and simply providing that the Guam Supreme Court is the highest local court of our territory with the Chief Justice at its head under a unified judiciary. This is similar to the court structures of the other fifty states. We only wish to be similarly treated.

If the Committee has any further questions, please do not hesitate to contact me. Sincerely,

F. PHILIP CARBULLIDO

Chief Justice, Acting

Mr. HAYWORTH. Thank you, Mr. Acting Chief Justice. We appreciate your testimony and what you provided in writing. It goes without saying, but I will repeat: everyone's testimony will be made part of the complete record.

Now, we turn to Presiding Judge Lamorena. Sir, welcome. We look forward to your testimony.

STATEMENT OF THE HON. ALBERTO C. LAMORENA III,
PRESIDING JUDGE, SUPERIOR COURT OF GUAM

Judge LAMORENA. Thank you very much, Mr. Chairman, members of the Committee. I would like to thank the Committee for inviting me to testify on H.R. 521.

The Organic Act of Guam is predicated on the principle that the United States citizens of Guam should be self-governing in the administration of their local civil affairs to the greatest extent possible, consistent with the current political status of Guam as an unincorporated territory.

Congress has shown restraint and declined to intervene in local affairs, even when requested by parties to the local debate and deliberative process unhappy with the results or outcome of the internal mechanisms of self-government under the Organic Act. The Organic Act provisions codified at 48 USC 1424, et al., carefully pre

scribes the relationship between the Federal and local courts. In doing so, Congress clearly and unambiguously and explicitly identified what matters of judicial administration involve Federal interest and what matters of judicial administration were to be locally determined and regulated. Thus, Section 1424-1 states clearly that the organization and operation of the local courts shall be as prescribed by the laws of Guam.

Section 1424-2 addresses in exceedingly precise and exact terms the manner in which Federal interests would be preserved and protected during the transitional relations between the local and Federal courts necessitated by the establishment of the appellate court in Guam. In doing so, Section 1424-2 carefully preserves local authority under the local courts, respecting what can be referred to as a bright line between Federal and local law concerning operation and administration of Federal and local courts respectively.

Under any reasonable and rational standard, this represents a successful statutory policy to ensure that the exercise by Guam of its authority to establish the Guam Supreme Court will be managed properly to continue good, orderly relations between the local and Federal courts. Instead of a reasonable standard, H.R. 521 implicitly declares the Congressional policy embodied in the Organic Act, including Section 1424-2, a failure.

H.R. 521 is an attempt to enlarge and expand the scope and extent of Federal interest and the exercise of Federal powers to encompass and include matters already determined by Congress to be local. H.R. 521 proceeds from the false premise that the Guam Supreme Court should operate in a political vacuum. Under this bill, on the issue of defining its powers and role in the lives of the community it was created to serve, the Supreme Court will only answer to Congress, in which the United States citizens of Guam have no voting representation.

Even though the Guam Supreme Court is a local court created under local law, H.R. 521 proposes to isolate and insulate the Guam Supreme Court from the political and legal processes of the Organic Act, the very instrumentality through which the will of the citizenry and the consent of the government are redeemed as to all local institutions and civil affairs. If the manner in which local law governs and regulates the administration and operation of the local courts is so defective, so deficient and so disruptive to good order as the supporters of H.R. 521 claim, then how is it that the Ninth Circuit has found that the Supreme Court is functioning in a manner which fully vindicates Federal interest as defined by Congress in Section 1424-2?

In Section 1424-1, Congress vested in the United States citizens of Guam and their elected representatives the subject relations between and among the local courts. That is good policy today, just as it was when this Committee declined to approve H.R. 2370 after the hearing conducted on October 29, 1997. My previous testimony emphasizes the irony of Congressional authorization of a local appellate court became the pretext for Congress to take back the authority over local court organization it granted to Guam under the Organic Act. What have we gained if we are empowered to establish a local appellate court only to be disempowered as to the operation and administration of the entire local court system itself?

We believe the Superior Court is best able to determine what is necessary and proper in order to carry out the court's responsibility. The Superior Court should be responsible for hiring, promoting, assigning and managing its own personnel as well as preparing its own budget requests. That is why the great majority of judges of the Superior Court of Guam and the Guam Legislature support the judicial council model. It creates a check and balance between the trial court, with a caseload 400 times larger than the appeals court, and precludes control of the trial courts by a Supreme Court that does not understand or have to live with resource management challenges of the trial court.

The U.S. Supreme Court has recognized that the power to establish internal structure of local courts is at the heart of self-government. In the case of Calder v. Bull, it was noticed that establishing courts of justice, the appointment of judges and the making of regulations for the administration of justice within each state according to its laws on all subjects not entrusted to the Federal Government appears to me to be peculiarly and exclusive the province and duty of the state legislature.

For these reasons, we oppose H.R. 521 as an attempt to Federalize the local courts of Guam, which would be a step backwards from self-government and self-determination. Again, thank you for the Committee and Mr. Chairman for allowing me the opportunity to testify before you today.

[The prepared statement of Judge Lamorena follows:]

Statement of Alberto C. Lamorena, III, Presiding Judge, Superior Court of Guam, on H.R. 521

The Organic Act of Guam constitutes a fifty-two year old Federal statutory policy promulgated and sustained by every Congress for the last five decades. It is predicated on the principle that the U.S. citizens of Guam should be self-governing in the administration of their local civil affairs to the greatest extent possible, consistent with the current political status of Guam as an unincorporated territory.

Under the Organic Act, Congress has implemented a policy of democratic institution building, enabling Guam to develop the customs and capacity for internal selfgovernment. The principal purpose of the Organic Act has been to promote local responsibility for local affairs, and to prepare the people of Guam for the time when Guam adopts a local constitution and addresses the question of its future political status.

Within the framework of the Organic Act, Congress has tended to legislate on local matters otherwise governed by the Organic Act only to the extent necessary to bring Guam within national law and policy, or under extraordinary circumstances. Congress wisely has exercised sparingly its power to legislate solutions to local problems.

As a general rule Congress has shown prudential restraint and declined to intervene, even when requested by parties to the local political debate and deliberative process unhappy with the results or outcome of the internal mechanisms of self-government under the Organic Act. Although the U.S. citizens of Guam do not live in a state of the union and under the protection of the 10th Amendment to the Federal constitution, the Organic Act and the manner in which Congress has implemented it are consistent with the principle of reservation of local power and responsibility over local issues.

This is particularly true with respect to the provisions of the Organic Act which govern the role of the Federal and local judiciary in Guam. Subchapter IV of the Organic Act, comprising the provisions codified at 48 U.S.C. 1424, et seq., is a carefully prescribed scheme of judicial empowerment which respects the principles of separation of powers and checks and balances that are the pillars of American constitutional democracy.

In addition to establishing and defining the jurisdiction of the Federal court in Guam, these provisions governing the judiciary prescribe the relationship between the Federal and local courts. In doing so, Congress clearly, unambiguously and ex

plicitly identified what matters of judicial administration involved Federal interest, and what matters of judicial administration were to be locally determined and regulated.

Thus, Section 1424-1 states clearly that the organization and operation of the local courts shall be as prescribed by the laws of Guam. Nevertheless, Section 1424– 2 also recognizes the unique circumstances surrounding the authorization by Congress for establishment under local law of an appellate court. In this provision Congress addressed in exceedingly precise and exact terms the manner in which Federal interests would be preserved and protected during the transition in relations between the local and Federal courts necessitated by the establishment of the appellate court in Guam.

Section 1424-2 is an artfully drawn statutory scheme that fully, adequately and effectively regulates relations between the newly established Supreme Court of Guam and the Federal courts. As such, it is dispositive with respect to Federal interest arising from the establishment of the local appellate court. There is no failure to anticipate additional Federal policy matters, no errors or omissions in the legislative language. Rather, Section 1424–2 carefully preserves local authority over local courts, respecting what can be referred to as a bright line between Federal and local law concerning operation and administration of Federal and local courts, respectively.

The best proof of this is the report that the Judicial Council of the Ninth Circuit submitted to Congress in 2001 as required by Section 1424-2. That report states that the decisions of the Guam Supreme Court are of comparable quality to decisions of the highest courts of the states in the Ninth Circuit, and "do not compel additional appellate review beyond that provided for decisions of the state supreme courts." This finding by the Judicial Council pursuant to its mandate under Section 1424-2 sets the stage for review of decisions of the Guam Supreme Court by the U.S. Supreme Court.

This means the transition in relations between the local and Federal courts is going very well, that Federal interests at stake in the transitional process, as defined by Congress, are being preserved and protected. Under any reasonable and rational standard, this represents a successful statutory policy to ensure that the exercise by Guam of its authority to establish the Guam Supreme Court would be managed properly to continue good order in relations between the local and Federal

courts.

Instead of a reasonable standard, H.R. 521 implicitly declares the Congressional policy embodied in Section 1424-2 a failure. It is an assault on the carefully prescribed scheme determined by Congress for the very purposes of protecting Federal interests without intruding upon local authority over local courts. H.R. 521 is an attempt to enlarge and expand the scope and extent of Federal interests and the exercise of Federal powers to encompass and include matters already determined by Congress to be local.

H.R. 521 proceeds form the false premise that the Supreme Court of Guam should operate in a political vacuum. Under this bill, on the issue of defining its own powers and role in the lives of the community it was created to serve, the Supreme Court will answer only to a Congress in which the U.S. citizens of Guam have no voting representation.

Even though the Guam Supreme Court is a local court created under local law, H.R. 521 proposes to isolate and insulate the Guam Supreme Court from the political and legal processes of the Organic Act, the very instrumentality through which the will of the citizenry and the consent of the governed are redeemed as to all local institutions and civil affairs.

Again, the best proof that this in not warranted, that it is an invasion of already limited local self-government, is the report of the Judicial Council of the Ninth Circuit. For if the manner in which local law governs and regulates the administration and operation of the local courts is so defective, so deficient and so disruptive to good order as the supporters of H.R. 521 claim, then how is that the Ninth Circuit has found that the Supreme Court is functioning in a manner which fully vindicates Federal interests as defined by Congress in Section 1424-2?

If the independence of the Guam Supreme Court were being usurped, if the new court were institutionally dysfunctional, then perhaps Federal interests beyond those identified in Section 1424-2 might need to be addressed by further legislation. Similarly, if local political debate, legislative proceedings, as well as executive measures, were producing a crisis in the administration of justice in Guam for which there were no local remedy, then perhaps there would be a more compelling reason for this Committee to be considering this bill.

But the local political process under the Organic Act is the mechanism Congress created to address the subject matter of H.R. 521. The fact that it may take time