By Gina Tabonares
Variety News Staff

THE Supreme Court of Guam has issued a notice for a June 1 status and disqualification hearing on the appeal filed by the Attorney General’s Office regarding the dismissal of the retirement case against former Gov. Carl T.C. Gutierrez and former Retirement Fund director John Rios.
The scheduled hearing is in preparation for the oral argument earlier set for July 6 to entertain questions regarding the disqualification of any justice, scheduling, the duration of arguments, and other administrative matters.
Chief Justice F. Phillip Carbullido, Associate Justice Robert J. Torres Jr. and Justice Pro Tempore Robert G. Cruz have been assigned to the panel that will hear arguments as to whether the trial court erred when it dismissed all charges filed against Gutierrez and Rios.
The justices will review issues presented by Deputy Attorney General William “Bill” Bischoff who raised questions whether it is not error as a matter of law to dismiss all charges in an indictment when the Supreme Court has granted a voluntary dismissal of the appeal at issue, before any decision was reached on it.
Bischoff is asking the higher court to rule whether Superior Court Judge Arthur Barcinas made the right decision in dismissing the charges based upon its ruling that Gutierrez was eligible to do an “excluded service credit” transaction or whether the former governor was “privileged” to retroactive enrollment in the Defined Contributions plan.
The government prosecutor also wants to know from the justices whether the charges filed in 2005 which he said are wholly different from the charges in 2004, and the charges relating to Gil Shinohara to additionally unlawfully increase Gutierrez’s retirement annuity, must be dismissed merely because their facts are intertwined with those of the 2004 charges.
In 2004, the AGO charged Gutierrez and Rios with theft by deception from the GovGuam Retirement Fund alleging that between Oct. 1, 1999 and Jan. 3, 2003, the two former public officials unlawfully conspired to enhance the Defined Benefits Retirement Fund annuity of Gutierrez by over $30,000.
The indictment alleged that in the years 1995, 1996 and 1997, Gutierrez, having retired from government service in 1989 and then having become governor of Guam in January 1995, had intended to suspend receiving his 1989 retirement annuity and instead be a contributing member of the Defined Benefits plan of the Retirement Fund for those three years at his governor’s salary rate and then retire immediately after Dec. 31, 1997.
Judge Barcinas, however, dismissed the Defined Benefits plan-related charges, stating that the AGO could not establish that Gutierrez was not “privileged to infringe” upon the property of the Fund.
The trial court also dismissed Defined Contributions plan-related charges in the indictment ruling that the government lawyer was unable to show that the former governor was not “privileged to infringe” upon GovGuam by retroactive enrollment in the Defined Contributions plan.