HAGÅTÑA (The Guam Daily Post) — Thursday marked the deadline for the Office of the Attorney General to file responses in the Supreme Court of Guam case regarding the office’s temporary withdrawal from nearly two dozen agencies. While the responses were filed, The Guam Daily Post was informed by court staff that documents were filed under seal.
Gov. Lou Leon Guerrero, on March 14, filed a request for declaratory judgment asking the Guam Supreme Court to determine whether the attorney general can withdraw his office’s legal representation of agencies on the basis that such representation might conflict with his public prosecutor role.
Attorney General Douglas Moylan announced on Feb. 28 that the OAG would withdraw its representation of agencies under investigation by the office, a decision stemming from conflict concerns raised by defense counsel in two corruption cases at the Superior Court of Guam, due to attorneys at the OAG having provided legal advice to agencies in which former or current officials are now facing prosecution.
Moylan argued there is no conflict but chose to withdraw the OAG from affected agencies until the courts decide the matter.
The withdrawal sparked concerns over how it would impact government procurements and services that need the OAG’s involvement. Moylan’s workaround was to have the OAG still review and approve documents but with the disclaimer that it is not acting as legal counsel for government agencies or departments. The governor’s office stated that wasn’t a solution because it did not comply with local law or the Organic Act of Guam.
In addition to asking the Guam Supreme Court to clarify the attorney general’s role and requirements for the office, Leon Guerrero asked whether agencies could hire independent legal counsels should there be issues with the AG’s representation.
And, on top of filing the request for declaratory judgment, the governor’s office also filed an emergency motion for an expedited briefing schedule.
“AG Moylan’s decision to withdraw from agency representation carries grave consequences for the agencies involved, especially line agencies that are not authorized to employ attorneys. Though AG Moylan has not withdrawn from representation of agencies he is not presently investigating, these agencies are similarly vulnerable. In the event the Attorney General does initiate an investigation against them in the future, these agencies will also be left suddenly without legal representation, potentially during pendency of important litigation or procurement of critical goods and services,” counsels for the governor stated in asking the island’s high court to fast-track their case.
On March 15, Guam Supreme Court Chief Justice Robert Torres ordered Moylan to respond to the governor’s petition on the issue of jurisdiction.
Although Guam law permits the governor or Legislature to request declaratory judgments from the Guam Supreme Court, some strict jurisdictional tests must first be met, according to Torres.
To pass jurisdictional muster, the party seeking declaratory judgment must show that the issue being raised is a matter of great public importance, that resolution through the normal process of law would be inappropriate by causing undue delay, and that the issue at hand is appropriate for the review under the section of law authorizing declaratory judgment requests, according to Torres’ order.
The AG was to respond to the jurisdictional issue and to the governor’s emergency motion on March 21. The governor’s replies are expected by March 26.
The Office of the Attorney General at the ITC building in Tamuning on Friday, Dec. 29, 2023.
