GCA Title 7, Chapter 5
7 GCA JUDICIARY AND CIVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL
INTRODUCTORY NOTE FOR TITLE 7 - JUDICIARY AND CIVIL PROCEDURE
2015 NOTE: The judicial branch of Guam was established on August 1, 1950 by the Organic Act of Guam, codified at 48 U.S.C. § 1424-1. The branch was reorganized pursuant to P.L. 12-085 (Jan. 16, 1974), known as the Court Reorganization Act, with appellate jurisdiction vested in a newly created the Supreme Court of Guam. However, after a legal challenge to P.L. 12-085, the Supreme Court of Guam was abolished when the U.S. Supreme Court determined that the Guam Legislature could not divest the District Court of Guam of appellate jurisdiction and transfer appellate jurisdiction to Supreme Court of Guam. See Guam v. Olsen , 431 U.S. 195 (1977). Subsequent amendments to the Organic Act authorized the Guam Legislature to create an appellate court, and in 1985, legislation was drafted to create Chapters 1 through 10 of Title 7 of the Guam Code Annotated. This draft legislation was eventually enacted into law by P.L. 21-147:2 (Jan. 14, 1993), known as the Frank G. Lujan Memorial Court Reorganization Act of 1992. Although P.L. 21-147:2 expressly stated that it was adding Chapters 1 through 10 of Title 7, the law itself enacted only Chapters 1 through 9. The provisions in the draft version of Chapter 10 were enacted as uncodified provisions; specifically, Sections 1 through 7 of P.L. 21-147. Past print publications of the GCA included annotations from the 1985 draft legislation, which were not included in Bill 102, the draft legislation introduced to the 21st Guam Legislature that was eventually signed into law as P.L. 21147. These annotation s, designated ‘1985 Source’ and ‘1985 Comment,’ have been retained as they provide background information as to the source and legislative drafting history.
CHAPTER 5 THE JUDICIAL COUNCIL
2025 NOTE: Pursuant to 5 GCA § 1510, I Maga’hågan/Maga’låhen Guåhan means the ‘Governor of Guam’ and I Maga’håga/Maga’låhi means the ‘Governor.’ Pursuant to 2 GCA § 1101, I Liheslatura/Liheslaturan Guåhan means the ‘Legislature’ / ‘Guam Legislature.’ Annotations in this Chapter, to include Source, Court Decisions, and Comments, have been reviewed, edited, corrected, and omitted for completeness and clarity. With regard to the 2014 NOTE below, procedural and local rules of court, including the current version of the Guam Rules for Judicial Disciplinary Enforcement, may be accessed on the Compiler of Laws website at https://www.guamcourts.org/CompilerofLaws/index.html under the ‘Court Rules’ tab. 2014 NOTE: This Chapter was added by P.L. 21-147:2 (Jan. 14, 1993), which added Chapters 1 through 10 of Title 7 and reorganized the judicial branch of Guam. Unless otherwise indicated, references in the Source notes are to P.L. 21147. Notes and Comments from the Compiler in prior print publications of the GCA have been retained to assist with understanding the legislative history of this Chapter. Provisions in this chapter addressing judicial discipline and removal, including §§ 5102(a) and 5104 to 5109, have been superseded by the promulgation of the Guam Rules for Judicial Disciplinary Enforcement. The Rules for Judicial Disciplinary Enforcement are the product of the Subcommittee on Judicial Ethics, which was formed by the Judicial Council of Guam in 2003 and tasked with reviewing the system of judicial discipline. The subcommittee drafted rules and requested comments from judicial officers and members of the Guam Bar Association, and submitted its report to the Supreme Court of Guam recommending adoption of the rules. The rules were adopted on March 27, 2006, and formally promulgated on September 5, 2006, PRM 06-002-001 (Sept. 5, 2006). The rules were amended on April 13, 2007, December 23, 2011, and December 28, 2012. The current rules may be found on the Supreme Court of Guam website at www.guamcourts.org/supreme.html.
7 GCA JUDICIARY AND CIVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL
§ 5109. Appeal from Decision of Special Court.
§ 5101. Judicial Council.
(a) There shall be a Judicial Council (the Council). All full-time Justices of the Supreme Court shall sit on the Judicial Council. Two (2) Superior Court Judges shall also sit on the Judicial Council, which shall include the Presiding Judge who shall appoint the remaining Judge. Should a Supreme Court member leave the bench, then the Presiding Judge shall remove one (1) Superior Court member until such time as a new Supreme Court Justice is nominated, confirmed and seated on the Supreme Court. The Chairperson of the Council shall be the Chief Justice. In the event of absence of the Chief Justice, the senior full-time Associate Justice shall act as Chairperson. At no time shall a designated Justice or Judge or a Justice or Judge pro tempore sit as a member of the Judicial Council. (b) The Presiding Judge, in his or her absence, or the absence of the other Superior Court Judge, may appoint from among the Judges an alternate to sit on the Judicial Council to ensure an adequate number of members from the Superior Court of Guam. (c) The term of the member of the Council appointed by the Presiding Judge shall be for three (3) years. If a member is replaced, the replacement member shall only serve out the remaining term of the member replaced. (d) The quorum of the Council shall be a majority of the sitting members, whether present or not. The vote of a not less than a majority of the sitting members shall be required for any action by the Council. (e) The Council shall promulgate its own rules for its conduct and operation. Said rules shall include provisions designed to comply with the spirit and intent of 5 GCA Chapter 8, the Open Government Law of Guam. (f) The Council shall be attached to the Judicial Branch of the government of Guam. SOURCE: Added by P.L. 21-147:2 (Jan. 14, 1993). Amended by P.L. 23-086:1 (Apr. 29, 1996). Repealed and reenacted by P.L. 24-139:33 (Feb. 21, 1998)( But see Court Decisions annotation below). Amended by P.L. 27-031:15 (Oct. 31, 2002). COURT DECISIONS: Pangelinan v. Gutierrez , 2000 Guam 11 ¶ 8 (’ We find that Bill 495 [designated as P.L. 24139] was pocket vetoed and that the Legislature ’ s subsequent actions did not serve to ratify Bill 495. ’), aff’d by Gutierrez v. Pangelinan , 276 F.3d 539 (9 th Cir. 2002), cert. den. 537 U.S. 825 (Oct. 7, 2002). 1985 SOURCE: New Section. 1985 COMMENT: The former Judicial Council will cease to exist with the creation of the Supreme Court. The governing functions of the Judicial Council will be assumed by the Supreme Court, as is done in the several states. This Commission [renamed ‘J udicial Council ’ in 1992 Act] will assume new functions related to the business of the courts, but not governing them. Both the Attorney General and the Chairperson of the Committee of Federal, Foreign and Legal Affairs of the Legislature (or its successor) remain on this Commission. However, unlike former law, all judges are members of the Commission, as it was before P.L. 12-85. Since the Commission [Council] no longer governs the courts, the problem of separation of powers formerly existing has ceased to exist.
§ 5102. Powers of the Judicial Council.
The Council shall have the following powers: (a) To initiate, receive and consider charges concerning alleged misconduct or incapacity of any Justice or Judge of the Courts and to form subcommittees that will determine and make recommendations as to the removal of any Justice or Judge;
7 GCA JUDICIARY AND CIVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL
(b) To adopt policies for the Court and make recommendations to I Liheslatura as may be deemed appropriate for the effective and expeditious administration of the judicial system; (c) To make other recommendations regarding the administration of Justice to I Maga’hågan/Maga’låhen Guåhan , or to I Liheslatura as it deems proper; (d) Notwithstanding any other provision of law, to adopt a pay plan and pay schedules for the classified and unclassified employees of the Judicial Branch consistent with the government-wide plan pursuant to Section 13 of Public Law 29-052 and Executive Order 2006-21, or the transmittal of the ‘Government of Guam Competitive Wage Act of 2014’ to I Liheslaturan Guåhan on January 15, 2014, subject to appropriations as provided by Liheslaturan Guåhan . Nothing in this Subsection (d) shall repeal or negate the provisions contained in Public Law 32-136 applicable to non-Judicial Branch employees; nor shall this Subsection (d) prohibit the retroactive payment to January 15, 2014, of Judicial Branch employees; (e) To adopt policy and rules for the operations of the Courts, including but not limited to, personnel, procurement, facilities and property, financial and travel (the provisions of § 6302(c), § 6303 and § 4105 of Title 4 of the Guam Code Annotated and § 23104(b) and § 23109 of Title 5 of the Guam Code Annotated are reaffirmed); (f) To establish rules and regulations for appeals and grievances brought upon by classified employees of the Courts, who have exhausted administrative remedies. The Council is authorized to designate and delegate a hearing officer, to hear and decide personnel matters. The decision of the hearing officer shall be final and may be appealed to the Superior Court of Guam; (g) To review and approve the budget for the operation of the Courts and its divisions, and submit its recommendations to I Liheslaturan Guåhan , under the signature of its Chairperson, by the first day of May of each year; (h) To employ, retain or contract for the services of qualified specialists or experts, as individuals or as organizations, to advise and assist the Courts in the fulfillment of its duties; (i) To adopt filing fees and other Court fees; (j) To promulgate the Judicial Council’s own rules for its conduct and operation; (k) To sue on behalf of the Courts, including on behalf of the Court’s employees, or itself to enforce any rights granted to the Courts; (l) To lease, evict, or sue on behalf of the Courts, relative to Court properties, equipment, and facilities; (m) Nothing contained in this Section shall be construed directly or by implication to be in any way in derogation or limitation of the powers conferred upon the Judicial Council or existing in the Supreme Court and the Superior Court or the Judiciary by virtue of any provision of the Organic Act of Guam or any statutes of Guam; (n) To have authority to act over all matters relating to the Judicial Building Fund; and (o) To approve and/or appoint nominees to positions provided for by this Act; and (p) To garnish income tax refunds of persons who have outstanding court fees, fines, and other court-ordered obligations, subject to the terms and conditions of a Memorandum of Understanding with the Department of Revenue and Taxation.
7 GCA JUDICIARY AND CIVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL
SOURCE: Added by P.L. 21-147:2 (Jan. 14, 1993). Repealed and reenacted by P.L. 24-139:34 (Feb. 21, 1998)( But see Court Decisions annotation below). Amended by P.L. 27-031:16 (Oct. 31, 2002). Subsection (d) amended by P.L. 32-166:1 (June 24, 2014). Subsection (p) added by P.L. 32-181:XIII:19 (Sept. 5, 2014). 2025 NOTE: Procedural and local rules of court, including the current version of the Guam Rules for Judicial Disciplinary Enforcement, may be accessed on the Compiler of Laws website at https://www.guamcourts.org/CompilerofLaws/index.html under the ‘Court Rules’ tab. 2014 NOTE: Judicial discipline in subsection (a) is now governed by the Guam Rules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. COURT DECISIONS: Pangelinan v. Gutierrez , 2000 Guam 11 ¶ 8 (’ We find that Bill 495 [designated as P.L. 24139] was pocket vetoed and that the Legislature ’ s subsequent actions did not serve to ratify Bill 495. ’), aff’d by Gutierrez v. Pangelinan , 276 F.3d 539 (9 th Cir. 2002), cert. den. 537 U.S. 825 (Oct. 7, 2002). 1985 SOURCE: New Section. 1985 COMMENT: This section reflects the fact the Supreme Court will provide supervision and guidance to the entire court structure of Guam. The Commission [Council] will be advisory, except in its role of nominating persons to sit on the bench and in investigating misconduct of judges. Section 121 of the Code of Civil Procedure changed the Judicial Council from that existing before the Court Reorganization Act (P.L. 12-85). Prior to that date, all of the judges of the Island Court were members of the Council as was the judge of the District Court. The Judicial Council under P.L. 12-85 consisted of the Chief Justice of the Supreme Court, Presiding Judge of the Superior Court and three (3) non-judicial members. Public Law 14-132, in amending § 121 CCP, eliminated the reference to the Chief Justice of the Supreme Court.
§ 5103. Selection of Justices or Judges.
Whenever a permanent vacancy shall occur in the office of the Chief Justice or of an Associate Justice of the Supreme Court, or whenever a vacancy shall occur in the office of the Presiding Judge or of a Judge of the Superior Court, I Maga’håga/Maga’låhi , unless there has been a declaration made pursuant to § 4101(c) of this Title, shall fill such vacancy by appointing a person possessing the qualifications for such office. The Council and the Guam Bar Association may each submit to I Maga’håga/Maga’låhi a list of qualified nominees for his or her consideration. In evaluating the nominees, I Maga’håga/Maga’låhi , the Council, and the Guam Bar Association shall consider their character, reputation in the community, experience in the practice of law, and, to the extent that such matters are discernible, whether the nominees possess ’ judicial temperament. ’ 2025 NOTE: References to the ‘Governor’ replaced with I Maga’håga/Maga’låhi pursuant to 5 GCA § 1510. 1985 SOURCE: CCP § 90 as modified. COMMENT: The 1985 Bill proposed reinstating a true ’ Missouri Plan ’ where the Governor was bound to pick one person from among a list submitted by the Council. This plan was dropped from the 1992 Act and the Governor now selects judges unhindered by any legal requirements of pre-selection by the Council. The reference to ’ judicial temperament ’ comes from American Bar Association suggestions for the selection of judicial candidates. However, some opinion states that one can never predict if a person has or does not have ’ judicial temperament ’ or even agree on just what it is. Therefore, the section does not attempt to make evaluation of this sometimes elusive quality mandatory.
§ 5104. Removal of Justices or Judges.
A subcommittee of Judges and Justices shall be formed composed of three (3) members appointed by the Chairperson. The subcommittee shall have the following powers and du