R.S.House of Representatives
Committee on Resources

Willashington, DC 20515

June 17, 1998

Honorable Mark C. Charfauros

24h Quan Legislature

777 Route 4, Sinajana, Suite 16B Sinajana, Guam 96926

Dear Schator Charfarros:

Thank you for your letter of June 2, 1998, regarding the proposed legislative provisions relating to Guam's local judiciary in H.R. 2370. Only those changes to the Organic Act of Guazz which and supported by the Governtucat of Gram are expected to be approved by Congress. This would therefore exclude the controversial federal imposition on the local government's judiciai braach, as there are clearly different views regarding Guan's judicial structure arnong leaders of the three branches of government in Guam. Those divergent views are apparent based on the tasdimody submitted at the congressional hearing of October 29, 1997, on HLR. 2370, and in light of legislation enacted by the Guam legislature this year.

I would inconsistent with the fandarnental principle of respecting local self-govcomment to impose a federal requirement on the local government's judicial branch, although Congress has the explicit constitutional prerogative to do so. Furthermore, currently there is no compelling reason for Congress to regulate the administrative operations of Guam's courts in order to protect or promote federal interests. Indeed the greater federal interest at this titue is to promoto local self-determination and self-government over Guam's internal affairs. Congressional intervention in this matter does not advance that federal interest. Absent a breakdown in the effective and efficient operation of the courts or rule of law under the Organic Act, a federal mandate altering local law would indeed represent a step backwards in Guam's evolution toward greater self-government and self-determination. Similarly, Congress should not pre-empt judicial review or the authority of the local legislature to act, in light of any applicable ruling by a court of jurisdiction.

I appreciate your recognition that Guam already has the tools of self-government and selfdetermination which augment the Organic Act and empower the residents of the territory to reform the local judiciary through adoption of a local constitution. Under Public Law 95-584, a constitution could establish the Commonwealth of Guarn and enable the United States citizens of Guam as an internally solf-governing body polite to exercise self-determination in local affairs, as well as to address in a more dermocratic and orderly manner the question of Guam's ultimate political status.

No U.S. territory or trust territory has ever achieved a permanent political status within or outside
of the U.S. constitutional system without first establishing local constitutional self-govemuscat as
a step in the status resolution process. The Congress is currently engaged in responding to the
nspirations of our fellow citizens in Puerto Rico for full self-government. After nearly 50 years
of local constitutional government, Puerto Rico has demonstrated convincingly that they at
prepared for full self-governances as a separate sovereign or as an incorporated part of the Union.

Again, thank you for sharing your views with me on H.R. 2370. It is my hope that Chiam will
fully utilize the existing authority in federal law for increased self-government consistent with
self-determination.

[A letter submitted for the record by Charles H. Troutman, Compiler of Laws, Office of the Attorney General, Department of Law, Territory of Guam, on H.R. 521 follows:]

I am Charles H. Troutman, Compiler of Laws for Guam and formerly Attorney General and counsel for the Commission on self Determination. I have been working with the issue establishing the supreme Court of Guam since before I argued the issue unsuccessfully in 1977 before the United States Supreme Court (People v. Olsen). Congress was looking at legislation similar to that presented here during the mid-1970s, but that was delayed pending the outcome of the Supreme Court case. Following that, the present law was adopted after much discussion. Even at that time I testified that a surer foundation was required for the Supreme Court.

I still believe that Guam needs a fully co-equal third branch of government. The same problems which plagued the court 0 legislative interference in the 1970's are with us still. Nevertheless, I believe that H.R. 521 is too detailed. There are many areas where flexibility is a necessity and legislative discretion a positive benefit. Therefore, I would urge that this Bill be amended to more resemble the applicable portions of Article III of the United States Constitution rather than include the many details found in H.R. 521. My suggestions follow:

Compiler of Laws Division (Dibision Fanrikohlyan i Lal Gulhan Siba)
Judicial Center 2-200E, 120 W. O'Brien Drive. • Hagátia, Guam 96910-5185 USA
Phone: (671)-475-3324 • Fax: (671-472-2493 O e-mails troutman@mail.justice.gov...gu

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I am concerned that subsection §22(a) (a)(1) and §22A (a)(1) would limit the present Supreme Court's jurisdiction by its reference to it as an "appellate" court and to the Superior Court as a "trial court". In the recent decision ofn re Request of the Governor Relative to... .P.L. 26-35, 2002 Guam 1 Appendix A - Partial Opinion), The Supreme Court, in justifying is jurisdiction to hear such declaratory judgments in the first instance, relied upon the Organic Act's grant to the Legislature to create any time of court of original jurisdiction, whether it be in the Superior Court of Supreme Court. This is very important and we should not limit this power. You will note from the Legislative history of that Guam Code Section (Appendix B), the states from which we adopted this provision do so in their Constitutions. If this section were to be carried over into this Bill part of my concern would be cased. However, there is still the question of new jurisdiction in the future. Under this bill, it is doubtful that the supreme Court could review decisions of government agencies much as the Circuit Court of Appeals review decisions of federal government agencies.

Therefore, I would suggest amending Section 2 of H.R. 512 to read:

Section 2. Judicial Structure of Guam,

(a) Section 22(a) ་་་

(a)

(1) The judicial power of Guam shall be vested in one Supreme Court, and in such inferior courts as the Legislature may from time to time establish. The judges of both the supreme and inferior courts shall hold office and be compensated as provided by the Guam Legislature, but such compensation shall not be diminished during their term of office unless by a general law affecting all the salaried officers of Guam.

(2) The Judicial Power of Guam shall extend to all cases, in law and equity, over which any Court established by the Constitution and laws of the United States does not have exclusive iurisdiction. Such jurisdiction shall be subject to the exclusive or concurrent jurisdiction conferred on the District Court of Guam by Section 1424(b) of this title.

(3) The jurisdiction and power of the Supreme Court of Guam shall consist of the power to hear all appeals from the inferior courts of Guam and from sctions of administrative agencies of the government of Guam, to issue any and all writs in aid of its appellate and original jurisdiction, pursuant to statutes of the Guam Legislature. The Supreme Court shall have such original jurisdiction as the Legislature may provide. The Supreme Court shall also have supervisory and administrative authority over the inferior courts through an organization prescribed by the Legislature, have authority to govern the practice of law in Guam, and prescribe rules of practice and procedure before the courts established under the Territory of Guam, all under rules adopted the Supreme Court, These rules may be changed by a statute passed by a vote of two-thirds of the Legislature.

(4) The Governor, in writing, or the Guam Legislature, by resolution, may request declaratory judgments from the Supreme Court as

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to the interpretation of any law, federal or local, lying within the jurisdiction of the courts of Guam to decide, and upon any question affecting the powers and duties of the Governor and the operation of the Executive Branch, or the Guam Legislature, respectively. The declaratory judgments may be issued only where it is a matter of great public interest and the normal process of law would cause undue delay. Such declaratory judgments shall not be available to private parties. The Supreme Court shall, pursuant to its rules and prosedurs, permit interested parties to he heard on the questions presented and shall rendor its written judgment thereon.

(5) There shall also be a District Court of Guam, created and having the jurisdiction provided in Section 22 of this Act (48 U.S.C.A. § 1424).

Under the present law and the Guam Supreme Court, references in the Organic Act to the Judicial authority of Guam residing in the District Court of Guam as well as in the local judiciary is confusing. The Organic Act contains other sections, notably §31) which gives exclusive jurisdiction over income tax matters to the District Court. That section is clear and should remain and changes to this section would not affect that. But since the District Court acts in other ways only as a federal, albeit an Article I or Article IV court, not an Article II court, and not as a court having local Guam jurisdiction, the Organic Act should be updated here, too, to reflect the reality of the situation. Therefore, I would suggest the following

Section 22 (48 U.S.C.A. § 1424:

81424. Courts of Guam; Jurisdiction; Procedure.

(a) District Court of Guam; local courts. The judicial authority of the United States in Guam judicial authority of Grum shall be vested in a court of record established by Congress, designated the “District Court of Guam”., and wad local court or courts as may have been or will hereafter be established by the laws of Guam in conformity with wection 1424-1 of this Title.

(b) Jurisdiction. The District Court of Guam shall have the jurisdiction of
a district court of the United States, any specific jurisdiction given it by other
Acts of Congress including this Act, including, but not limited to, the diversity
jurisdiction provided for in 1332 of title 28, United States Code, and that of a
bankruptcy court of the United States.

(v) Original Local Jurisdiction. In addition to the jurisdiction described in
subsection (b) of this section, the District Court of Gueur shall have origins!
jurisdiction in all other causes in Sun, jurisdiction ov
over which is not then
vested by the legislature in another court or court established by it. Ir caUDGE
brought in the district court solely on the basis of this subsection, the district
court shall be considered a court established by the laws of Gaur for the purpose
of determining the requirements of indictment by grand jury or trial by jury.

Finally, I would delete the remainder of section 22-B (48 U.S.C.A. 1424-2 because the substance of this subsection is contained in my first suggested amendment. :