Guam – The Supreme Court of Guam heard oral arguments in court today in the election lawsuit that seeks to de-certify the results of the gubernatorial election. Their decision will determine whether or not the Calvo/Tenorio team will be inaugurated into office on Monday January 3rd.
The Gutierrez/Aguon team flew in high profile California attorney Doron Weinberg and today he opened for the team with their oral arguments. “Not one of the sitting members of the Guam Election Commission was as of November 2 2010 legally appointed every single one was there contrary to the requirements of the law.”
This is the crux of the Gutierrez/Aguon case, that none of the GEC members had valid appointments. They allege that three of them had expired appointments and that the remaining members had invalid appointments that lacked a duly passed resolution. GEC members are nominated by both the Republican and Democratic parties of Guam. They send their nominations to the governor and then the Governor officially appoints them. The parties are also supposed to include with their nominations a resolution that is passed by their party members. The Guttierez/Aguon team argues that because there are no records of any resolutions for any of the members of the GEC all of their appointments are invalid and thus the certification of the election should be considered invalid.
GEC attorney Cesar Cabot however argued that the GEC is not required to keep record of these resolutions. “They raise the argument that because it’s not in the GEC files therefore it doesn’t exist they’re assumption is that it must be in the GEC files and that’s their biggest flaw and that makes their entire argument false these resolutions as the statute clearly tells us does not go to the GEC once in a while they cc copy the GEC but these go to the governor,” said Cabot.
He also went on to argue that these resolutions are provided by the political parties on Guam, parties which are not a part of the government of Guam parties that are essentially private non-government entities. “We find it very hard to believe that the mistakes of the party the private association are enough to stop the Guam election enough to stop the operation of government enough to nullify an election,” said Cabot.
However, David Lujan argued that it should be the GEC’s responsibility to keep track of these records because they have a vested interest in protecting themselves against lawsuits such as these, but one of the central points of argument in this case involves what is called the “De-facto” official doctrine. This doctrine essentially allows for important government officials to operate in a de-facto capacity in order to prevent technical claims against their holding of office and in order to prevent the toppling of government. Lujan argues that there are exceptions to the de-facto doctrine for example when the de-facto official operates in bad faith. This is something that Lujan believes occurred here when the GEC members continued to act as GEC officials even when they knew that either their terms had expired or they were operating without a duly passed resolution.
On the other hand Phillips argued that certification is merely a ministerial function and that these members in this case should fall under the de-facto doctrine in order to prevent chaos and a thwarting of the will of the people. “They’re looking for another group of people to do what the legislature has mandated is nothing more than a ministerial obligation you could have the three of us here sit and we would have to come to the same conclusion you could have governor Gutierrez senator Aguon and Gerry Gutierrez sit and their obligation is the same in fact I submit to the court that’s why today the democratic members refuse to show up for a meeting because they understand that Joshua Tenorio and John Terlaje and Alice Taijeron all raised their hands in support not because they liked the results of the election but like I have, I’ve lost elections when I’m on the commission I raise my hand because it’s a ministerial duty,” said Phillips.
The supreme court took all of these arguments under advisement and should be issuing a decision shortly. They are expected to issue the decision before the January 3rd inauguration.