Attorney General Douglas Moylan, center, shakes hands with several other attorneys at a Supreme Court of Guam status conference Wednesday, April 12, 2023, at the Guam Judicial Center in Hagåtña.
HAGÅTÑA (The Guam Daily Post) — As the island’s high court prepares to hear arguments over the validity and enforceability of Guam’s defunct abortion ban, the governor and the attorney general continue to argue over whether the case should be heard at all.
Gov. Lou Leon Guerrero has opposed the attorney general’s motion to dismiss her petition for declaratory judgment at the Supreme Court of Guam, which is set to address whether the Legislature had the authority to pass the abortion ban more than 30 years ago – and if the ban was repealed by implication through subsequent laws.
That petition was first filed in late January, as AG Douglas Moylan was preparing to ask the District Court of Guam to vacate a long-standing injunction, or judicial hold, on the ban.
Guam’s abortion ban, P.L. 20-134, was held unconstitutional shortly after enactment and an injunction was placed over the law, barring enforcement. Federal case law at the time protected abortion as a right.
But in June 2022, the U.S. Supreme Court reversed decades-old precedent on abortion, ruling in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to the procedure.
On Feb. 1, a month after coming into office, Moylan moved to lift the injunction on Guam’s abortion ban and the cases at the Guam Supreme Court and District Court then began to proceed in parallel.
However, on March 24, the District Court denied Moylan’s motion, stating that the AG did not respond to issues raised by plaintiffs in that case. For now, the hold on the ban is maintained.
Shortly after that, Moylan moved to dismiss the case at the Guam Supreme Court, arguing that the federal court’s decision raised subject matter jurisdiction issues for the local case. And, even if the island’s high court determined that jurisdiction still existed, the AG argued that it should abstain and defer to the federal court, as proceeding could create conflicting decisions between the two court systems.
Moylan plans to seek reconsideration or an appeal of the District Court ruling, and the governor’s lawyers were quick to note that the federal decision was not a final adjudication in that case, arguing that it does not impact the criteria in determining the Supreme Court’s jurisdiction.
Declaratory judgment
Both the governor and the Guam Legislature can ask the Guam Supreme Court for declaratory judgment as to the interpretation of any law, given that certain requirements are met. The issue raised must be of great public importance, and it must be that resolution through the normal process of law would be inappropriate and cause undue delay. Moreover, the subject matter of the inquiry has to be appropriate for review.
Two of the governor’s initial three questions for the Guam Supreme Court, the issues that will now be addressed, met those criteria, the court found. The governor’s lawyers argued that Moylan did not engage the requirements for jurisdiction and did not discuss which of the requirements are affected by the District Court’s order.
Moylan had also argued that the federal court decision created a lack of case or controversy to address at the Guam Supreme Court, but the governor argued that wasn’t a requirement for jurisdiction.
The local high court should also not abstain or defer to the District Court, the governor’s opposition stated, arguing that the federal court should instead be the one to abstain, as the resolution of local law issues would obviate the need for the District Court to resolve constitutional issues pending in the federal case.
In response, Moylan pointed to the Guam Supreme Court’s February order, which discussed jurisdiction of the governor’s petition. That order stated that if the District Court “declines to dissolve the injunction, the status quo would be unchanged, and declaratory relief from (the Guam Supreme Court) would be unnecessary.”
“Such is the case now,” Moylan’s reply stated.
He also argued that the Guam Supreme Court has chosen to stay away from questions involving a “political struggle” between the other two branches of government. The case before the court presents a “political struggle” between the governor and the Legislature on laws governing abortion, Moylan argued.
The governor’s petition is also the equivalent of trying to find Guam’s old abortion ban unconstitutional, and that issue deserves to first be properly presented in the lower court, Moylan stated.
Status and disclosure
While the issue of whether the governor’s petition should be dismissed remains pending before the Guam Supreme Court, a status conference on the case did take place, albeit uneventfully, Wednesday morning.
Chief Justice Robert Torres went over the briefing deadlines and how oral arguments would proceed on May 10. Torres also disclosed that his daughter is the integrated advocacy director for the American Civil Liberties Union in Washington state.
The ACLU is among the interested parties that have submitted amicus briefs, or assistive briefs, to the Guam Supreme Court in this case.
But his daughter is not involved in the case, nor is the Washington state ACLU, and Torres said he did not believe his daughter’s employment created grounds for his disqualification. Any party that wants to pursue Torres’ disqualification has until April 19 to file an objection.
