Chapter 5

7 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 1 CHAPTER 5 THE JUDICIAL COUNCIL 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 indic ated, references in the Source notes are to P.L. 21-147. Notes and Com ments from the Compiler in prior print publications of the GCA hav e been retained to assist with understanding the legislative history o f this Chapter. Provisions in this chapter addressing judicial disc ipline and removal, including §§ 5102(a) and 5104 to 5109, have been su perseded by the promulgation of the Guam Rules for Judicial Discipl inary Enforcement. The Rules for Judicial Disciplinary En forcement are the product of the Subcommittee on Judicial Ethics, whi ch was formed by the Judicial Council of Guam in 2003 and tasked wit h reviewing the system of judicial discipline. The subcommittee dra fted rules and requested comments from judicial officers and membe rs of the Guam Bar Association, and submitted its report to the Su preme Court of Guam recommending adoption of the rules.

ittee dra fted rules and requested comments from judicial officers and membe rs of the Guam Bar Association, and submitted its report to the Su preme Court of Guam recommending adoption of the rules. The rules were adopted on March 27, 2006, and formally promulgated on Sept ember 5, 2006, PRM 06-002-001 (Sept. 5, 2006). The rules were amen ded on April 13, 2007, December 23, 2011, and December 28, 2012. The current rules may be found on the Supreme Court of Guam web site at www.guamcourts.org/supreme.html . § 5101. Judicial Council. § 5102. Powers of Council. § 5103. Selection of Justices or Judges. § 5104. Removal of Justices or Judges. § 5105. Procedure for Considering Removal. § 5106. Subcommittee Rules. § 5107. Determination of Judicial Disqualification. § 5108. Removal for Cause by Special Court. § 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 a ppoint the remaining Judge.

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 a ppoint the remaining Judge. Should a Supreme Court member leav e the bench, then the Presiding Judge shall remove one (1) Super ior Court COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 2 member until such time as a new Supreme Court Justi ce is nominated, confirmed and seated on the Supreme Cour t. The Chairperson of the Council shall be the Chief Justi ce. In the event of absence of the Chief Justice, the senior full-ti me 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.

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 o ut the remaining term of the member replaced. (d) The quorum of the Council shall be a majority o f the sitting members, whether present or not. The vote of a not less than a majority of the sitting members shall be required f or 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 B ranch of the government of Guam. SOURCE: Amended by P.L. 23-86 (4/29/96) to increase number of judges and justices on Council and to remove President of Bar Association. Repealed and reenacted by P.L. 24-139:33. Amended by P.L. 27-31:15 to reflect the integration of the Guam Court system. Also, the Attorney General and the Chairman of the Legislature’s Judic iary Committee (or equivalent) were removed from

. Amended by P.L. 27-31:15 to reflect the integration of the Guam Court system. Also, the Attorney General and the Chairman of the Legislature’s Judic iary Committee (or equivalent) were removed from the Council. COURT DECISIONS: The Supreme Court, in Pangelinan v. Gutierrez, 2000 Guam 11 (2000); affirmed by the Ninth Circuit as 276 F.3d 534 (1/10/2002), held P.L. 24-139 not to have existed a t all as a public law because it was Apocket vetoed @ by the Governor. Therefore, this section reverts to the way it read upon its amendment by P. L. 26-86:1 as there have been no changes in the law since that time. The ma in difference is that the COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 3 Attorney General is returned to the Judicial Counci l, as are representatives of the Supreme Court. (1992) COMMENT: The 1992 Act modifies the 1985 proposed composition of the Council, returning it to its exi sting membership plus the Chief Justice. 1985 SOURCE: New Section. 1985 COMMENT: The former Judicial Council will cease to exist wi th the creation of the Supreme Court. The governing functi ons of the Judicial Council will be assumed by the Supreme Court, as is done in the several

e former Judicial Council will cease to exist wi th the creation of the Supreme Court. The governing functi ons of the Judicial Council will be assumed by the Supreme Court, as is done in the several states. This Commission [renamed Ajudicial 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 th e Committee of Federal, Foreign and Legal Affairs of the Legislatu re (or its successor) remain on this Commission. However, unlike former l aw, 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 t o exist. § 5102. Powers of the Judicial Council. The Council shall have the following powers: (a) To initiate, receive and consider charges conc erning alleged misconduct or incapacity of any Justice or Judge of the Courts and to form subcommittees that will determin e and make recommendations as to the removal of any Justi ce or Judge; (b) To adopt policies for the Court and make recommendations to I Liheslatura as may be deemed appropriate

es that will determin e and make recommendations as to the removal of any Justi ce or Judge; (b) To adopt policies for the Court and make recommendations to I Liheslatura as may be deemed appropriate for the effective and expeditious admin istration of the judicial system; (c) To make other recommendations regarding the administration of Justice to I Maga’lahen Guåhan , or to I Liheslatura as it deems proper; (d) Notwithstanding any other provision of law, to adop t a pay plan and pay schedules for the classified and unclassified employees of the Judicial Branch consistent with th e government-wide plan pursuant to Section 13 of Publ ic Law 29-52 and Executive Order 2006-21, or the transmitt al of the COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 4 'Government of Guam Competitive Wage Act of 2014' t o 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 p rovisions contained in Public Law 32-136 applicable to non-Ju dicial Branch employees; nor shall this Subsection (d) pro hibit the retroactive payment to January 15, 2014, of Judicia l Branch employees; (e)

ns contained in Public Law 32-136 applicable to non-Ju dicial Branch employees; nor shall this Subsection (d) pro hibit the retroactive payment to January 15, 2014, of Judicia l Branch employees; (e) To adopt policy and rules for the operations of the Courts, including but not limited to, personnel, pr ocurement, facilities and property, financial and travel (the provisions of § 6302(c), § 6303 and § 4105 of Title 4 of the Guam C ode 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 Co uncil is authorized to designate and delegate a hearing offi cer, to hear and decide personnel matters. The decision of the hearing officer shall be final and may be appealed to the S uperior Court of Guam; (g) To review and approve the budget for the operat ion of the Courts and its divisions, and submit its recomm endations 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

nd submit its recomm endations 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 t he 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 be half of the Court’s employees, or itself to enforce any rig hts granted to the Courts; COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 5 (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 cons trued directly or by implication to be in any way in dero gation or limitation of the powers conferred upon the Judicia l Council or existing in the Supreme Court and the Superior Cour t 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 relat ing to the Judicial Building Fund; and (o)

r Cour t 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 relat ing 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 ha ve outstanding court fees, fines, and other court-orde red obligations, subject to the terms and conditions of a Memorandum of Understanding with the Department of Revenue and Taxation. SOURCE: New Section. Repealed and reenacted by P.L.. 24-13 9:34. Amended by P.L. 27-31:16 relative to the integratio n of the Supreme and Superior Court structure. 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). 2014 NOTE: Judicial discipline in subsection (a) is now gove rned by the Guam Rules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. COURT DECISIONS: The Supreme Court, in Pangelinan v. Gutierrez, 2000 Guam 11 (2000); affirmed by the Ninth Circuit as 276 F.3d 534 (1/10/2002), held P.L. 24-139 not to have existed a t all as a public law because it was Apocket vetoed @ by the

linan v. Gutierrez, 2000 Guam 11 (2000); affirmed by the Ninth Circuit as 276 F.3d 534 (1/10/2002), held P.L. 24-139 not to have existed a t all as a public law because it was Apocket vetoed @ by the Governor. Therefore, this section reverts to the way it read upon its original enactm ent as there were no amendments prior to or since P.L. 24-139. The main difference is that the Council assumes a far more advisory role than under P.L. 24-139, except for its power to take complaints about judges and justi ces. 1985 SOURCE: New Section. 1985 COMMENT: This section reflects the fact the Supreme Court w ill provide supervision and guidance to the entire cour t structure of Guam. The Commission [Council] will be advisory, except in it s role of nominating persons to sit on the bench and in investigating mi sconduct of judges. COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 6 Section 121 of the Code of Civil Procedure changed the Judicial Council from that existing before the Court Reorgan ization Act (P.L. 12- 85). Prior to that date, all of the judges of the I sland Court were members of the Council as was the judge of the District Court. The Judicial Council under P.L.

Court Reorgan ization Act (P.L. 12- 85). Prior to that date, all of the judges of the I sland 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, eliminate d the reference to the Chief Justice of the Supreme Court. COMMENT : The 1992 Act deleted reference to the Council >s role in nominating judges as the Council >s and the Bar >s role under the 1992 Act are limited to recommending persons to the Governor , who does not need to consider them. § 5103. Selection of Justices or Judges. Whenever a permanent vacancy shall occur in the off ice of the Chief Justice or of an Associate Justice of the Sup reme Court, or whenever a vacancy shall occur in the office of the Presiding Judge or of a Judge of the Superior Court, the Governor, unless there has been a declaration made pursuant to § 4101(c) of th is Title, shall fill such vacancy by appointing a person possessing the qualifications for such office.

erior Court, the Governor, unless there has been a declaration made pursuant to § 4101(c) of th is Title, shall fill such vacancy by appointing a person possessing the qualifications for such office. The Council and the Guam Bar Assoc iation may each submit to the Governor a list of qualified nom inees for his or her consideration. In evaluating the nominees, the Governor, the Council, and the Guam Bar Association shall conside r their char- acter, reputation in the community, experience in t he practice of law, and, to the extent that such matters are disce rnible, whether the nominees possess >judicial temperament. 1985 SOURCE: CCP § 90 as modified. COMMENT: The 1985 Bill proposed reinstating a true AMissouri Plan @ where the Governor was bound to pick one person fro m among a list submitted by the Council. This plan was dropped fro m the 1992 Act and the Governor now selects judges unhindered by any legal requirements of pre- selection by the Council. The reference to Ajudicial temperament @ comes from American Bar Association suggestions for the selection of judici al candidates. However, some opinion states that one can never predict if a person has or does not have Ajudicial

erament @ comes from American Bar Association suggestions for the selection of judici al candidates. However, some opinion states that one can never predict if a person has or does not have Ajudicial 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. COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 7 A subcommittee of Judges and Justices shall be for med composed of three (3) members appointed by the Chai rperson. The subcommittee shall have the following powers and du ties with respect to the removal of Justices or Judges from t he Courts of Guam: (a) It shall initiate, receive and consider charges con- cerning alleged misconduct or incapacity of any Chi ef Justice, Justice, Presiding Judge or Judge of the Courts of Guam; (b) It may subpoena witnesses, administer oaths and take testimony relating to matters before it; and (c) It shall report its findings and make recommend ations to the Judicial Council for action. SOURCE: Subparagraph (d) added by P.L. 24-135:1. Subparagr aph (d) amended by P.L. 24-139:26. Amended by P.L.

t shall report its findings and make recommend ations to the Judicial Council for action. SOURCE: Subparagraph (d) added by P.L. 24-135:1. Subparagr aph (d) amended by P.L. 24-139:26. Amended by P.L. 27-31:1 7 to reflect the integration of the Supreme and Superior Court struc ture. 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. 1985 SOURCE: Former CCP § 123, modified. 1985 COMMENT: This section places with the Judicial Commission [Council] the power to investigate charges against justices and judges. This power, in basically the same form, formerly lay wit h the Judicial Council, but has never has been exercised. § 5105. Procedure for Considering Removal. (a) Any charges against any Justice or Judge must b e in writing, signed by the person making the charge und er oath, except that any charge initiated by the subcommittee must be signed by at least two (2) members of the subcommittee. The subc ommittee shall notify in writing every Justice or Judge against wh om a charge is received and afford the Justice or Judge an opportu nity to explain the charge.

members of the subcommittee. The subc ommittee shall notify in writing every Justice or Judge against wh om a charge is received and afford the Justice or Judge an opportu nity to explain the charge. The subcommittee shall investigate all charges on a confidential basis, having available all the powers herein provided, and the proceedings shall not be public. If a major ity of the members of the subcommittee determine that there is probable cause for belief that a Justice or Judge appears to be so incapacitated as substantially to prevent the Justice or Judge from performing judicial duties or has acted in a manner that const itutes willful misconduct in office, willful and persistent failur e to perform COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 8 judicial duties, habitual intemperance, or conduct so prejudicial to the administration of justice that brings the judic ial office into disrepute, the subcommittee shall certify its findi ngs to the Chief Justice of the Supreme Court, or to the most senior Associate Justice of the Supreme Court if the Chief Justice is the su bject of the charges, within thirty (30) days after such determi nation.

hief Justice of the Supreme Court, or to the most senior Associate Justice of the Supreme Court if the Chief Justice is the su bject of the charges, within thirty (30) days after such determi nation. (b) Any Council member or individual, including the individ- ual making the charge, who divulges information con cerning the charge prior to the certification of the charge by the subcommittee to the Chief Justice of the Supreme Court, or if the i nvestigation discloses that the certification should not be issu ed by the subcom- mittee, any Council member or individual who divulg es at any time any information concerning the original charge or d ivulges the contents or discloses any matter except as permitte d by this Title, shall be guilty of a misdemeanor. (c) In the event that the subcommittee determines t hat a Judge or Justice should be removed from office, the Attor ney General shall present the case to the Supreme Court pursuant to t he provisions of § 5107, infra. 1985 SOURCE: CCP § 124, modified. 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note.

o t he provisions of § 5107, infra. 1985 SOURCE: CCP § 124, modified. 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. 1985 COMMENT: Basically follows prior law, but specifies that the Attorney General act as prosecutor. This function w ould be similar to the Attorney General's role before a Grand Jury, except that the Commission, working with him, makes the actual decision to brin g or continue charges. The Attorney General could also prefer charges to t he Commission. There would be no conflict, since it is he who determines what to bring before Grand Juries, and then prosecutes. This is a better method than that used by the Bar Ethics Committee, since the Attorney Genera l has the personnel and mechanisms for investigations and prosecutions alre ady in place. COMMENT: The 1992 Act does not involve the Attorney General as prosecutor until after the Council has determined t hat the case must be taken to the Supreme Court. § 5106. Subcommittee Rules. All the hearings and proceedings by the subcommitte e shall be governed by this Title and by the rules and regulat ions adopted by the Subcommittee.

to the Supreme Court. § 5106. Subcommittee Rules. All the hearings and proceedings by the subcommitte e shall be governed by this Title and by the rules and regulat ions adopted by the Subcommittee. COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 9 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. 1985 SOURCE: Former CCP § 95 modified . § 5107. Determination Of Judicial Disqualification. (a) The Supreme Court of Guam shall constitute a s pecial court to receive the recommendation of the subcommi ttee and conduct a hearing thereon. (b) Following certification by the subcommittee, th e special court may subpoena witnesses, administer oaths, and take testimony relating to the charge and may order the production for examination of any books or papers relative to the charge. (c) The special court shall set a time and place fo r a hearing, giving notice to the complainant and the Justice or Judge involved. All parties shall have an opportunity to: (1) Be heard; (2) Subpoena witnesses and require the production o f any books or papers relating to the proceedings; (3) Be represented by counsel;

involved. All parties shall have an opportunity to: (1) Be heard; (2) Subpoena witnesses and require the production o f any books or papers relating to the proceedings; (3) Be represented by counsel; (4) Have the right of cross examination. All witnesses shall testify under oath and the hear ing shall be closed to the public unless the Justice or Judge co mplained against requests for an open hearing. The special court sha ll not be bound by the rules of evidence but its findings must be b ased upon competent and substantial evidence. 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. 1985 SOURCE: Former CCP § 96. § 5108. Removal for Cause By Special Court. If, after conducting its investigation thereof purs uant to § 5107 of this Chapter, two (2) of the three (3) members o f the special court find that a Justice or Judge under charge sho uld not remain in office, the special court shall remove su ch Justice or Judge within thirty (30) days after its findings ha ve been so COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 10 made.

t remain in office, the special court shall remove su ch Justice or Judge within thirty (30) days after its findings ha ve been so COL52420187 GCA C IVIL PROCEDURE CH. 5 THE JUDICIAL COUNCIL 10 made. The Justice or Judge so removed shall neverth eless be subject to indictment, trial, judgment, and punishm ent according to the law. If the removal of the Justice or Judge is originated by a complaint signed by a Justice of th e Supreme Court or Judge of the Superior Court, such member o r members shall not be permitted to sit in or partici pate in the decisions of the special court. 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. 1985 SOURCE: Former CCP § 97. § 5109. Appeal from Decision of Special Court. Any Justice or Judge against whom a finding is made by the special court pursuant to § 5107 of this Chapter ma y appeal such decision in the same manner as a final decision of the Supreme Court in civil cases. Following the judgment of the special court and pending the outcome of the appeal, the Justice or J udge against whom the decision of the special court is given sha ll be suspended from his or

cases. Following the judgment of the special court and pending the outcome of the appeal, the Justice or J udge against whom the decision of the special court is given sha ll be suspended from his or her position without pay; provided, how ever, that if the adverse judgment is reversed on appeal the Justice or Judge shall be entitled to reinstatement and all back pay accrued during the time of the appeal. 2014 NOTE: Judicial discipline is now governed by the Guam R ules of Judicial Disciplinary Enforcement. See Chapter 5, 2014 Note. 1985 SOURCE: CCP § 98 added by PL. 11-95, repealed by P.L. 12-85 (Court Reorganization Act). Modified to provide pro cedure for suspension and reinstatement. Also, the ASpecial Court' is the Supreme Court, so that there is only one court empowered to hear the matte r. A judge may petition for review to the 9th Circuit as in civil cases. 1985 COMMENT: This section is modified to reflect the suspension of the judge from duty during his appeal, but allowing for reinstatement and back- pay if the adverse decision is reversed. ----------- COL5242018