Guam – Last week the Gutierrez/Aguon team was granted their petition to have an expedited hearing process in their election lawsuit in the Supreme Court of Guam. This expedited time line required that the Guam Election Commission and the Calvo/Tenorio team file their response to the petition today and that the Gutierrez/Aguon team file their briefs today all by 8:30am.
As you may recall the Gutierrez/Aguon team are asking the court to de-certify the gubernatorial result of the November general election. If the court grants this request it will spoil Calvo/Tenorio’s plans for inauguration on January 3rd.
The Gutierrez/Aguon lawsuit is based on the allegation that none of the Guam Election board members were legally valid members of the board. This allegation is based on a few different things. For on it is alleged that Joseph Mesa, Martha Ruth and Robert Cruz all had their appointments expire prior to the General Election. For example they point to evidence that shows that Josepsh Mesa was appointed on June 18 2007 with his term expiring on September 2nd 2008. They allege Martha Ruth was nominated on Oct. 27 2008 with her term expiring on Oct. 28th 2010 and that Robert Cruz was nominated on Oct. 10th 2007 with his term expiring on Oct. 9th 2009.
They also allege that all GEC members require a duly passed resolution by their respective parties for their appointments to the board to be valid. Thus they allege that John Taitano, Alice Taijeron, John Terlaje, and Josh Tenorio were not appointed by a duly passed resolution from their respective parties. This based on an alleged lack of documentation at the GEC indicating any duly passed resolution.
Thus the Gutierrez/Aguon team allege that all seven of the members of the GEC board lacked legally valid appointments. Because of this they are asking the Supreme Court of Guam to cancel, invalidate, and annul the certificates of election and essentially de-certify the election. Without certified results the Calvo/Tenorio team can not proceed with their inauguration which is planned for January 3rd.
However the Calvo/Tenorio team and the GEC have filed their response to these claims. Guam Election Commission attorney’s Cesar Cabbot and Rawlen Mantanona state in their response that the evidence presented by the Gutierrez/Aguon team is “incompetent” and that their challenges to the authority of the GEC are “merit-less”. The GEC attorneys say that all of their board members were legally appointed and had the authority necessary to certify the election.
They argue that a duly passed resolution by their respective parties is not needed for their appointment. They cite a couple of cases that they believe back up this argument. Then there is their argument for the board members whose appointments allegedly expired. They say that the term of appointment for a GEC member should be counted from the day the member was sworn into office and not from the day of their appointment letter. Martha Ruth was sworn in on January 21st 2009 which is why they argue that her term expires on January 21st 2011.
As for Joe Mesa and Robert Cruz the GEC admits their terms may have technically expired but they argue that they would be allowed to operate as de-facto members for as long as he or she continues to operate under the color of the law.
They also argue that even if Ruth Mesa and Cruz are excluded the remaining four had appointments that weren’t expired. These four namely Taijeron, Tenorio, Terlaje, and Ruth are the four that the Gutierrez/Aguon team allege lack a duly passed resolution by their respective parties. The GEC argues That this duly passed resolution is a technicality that doesn’t change the validity of their appointments. Thus they argue that these four members alone were enough to certify the election.
Finally, they argue that the alleged defects make no difference to the outcome of the election. This is something that Calvo/Tenorio attorney Mike Phillips has been arguing from the beginning of this lawsuit. In fact this is something that Phillips brings up again in the response he filed today. Phillips’ response coincides with much of what the GEC has responded with that is that the members of the GEC were operating as de-facto members and that the petitioners have failed to provide any evidence that Gutierrez/Aguon should have been victorious in the election.
Both sides will present their arguments orally before the Supreme Court of Guam on Thursday. If the courts decide to grant the Gutierrez/Aguon petition for de-certification, the Calvo/Tenorio inauguration can not happen on January 3rd as scheduled.