© Robert M. Weinberg 2013
Originally Published in the Marianas Variety on June 18, 2013
Those who suggest that Guam should return to the “good old days” when Guam’s Attorney General was appointed by the Governor forget a critical part of their own history. From the Congressional Record of the 1998 amendments to Guam’s Organic Act: “Public concerns revolve around political interference with investigations, inefficiency of case work and dismissal of the Attorney General without cause. In response to the growing number of complaints, a survey was conducted to determine an acceptable resolution. It was clear that respondents (sixty-nine percent) favored an elected position.”
In 1996 former (appointed) Attorney General and then-Senator (now retired superior court judge) Elizabeth Barrett-Anderson submitted testimony to the House Subcommittee on Native American & Insular Affairs in which she said, “the people of Guam expect the Attorney General to protect their interest above all else. An appointed Attorney General unfortunately must respond to a great extent to the concerns of the Governor.” Senator Ben Pangelinan testified a year later that “it has become inherently clear that the appointed Attorney General is not capable of isolating himself or herself from political interference.” He argued the Attorney General should be “accountable solely to the public,” in a position to “isolate himself or herself from political interference.” Finally, he observed, “It is fundamental to the underpinning of our democratic process of openness and fair play that the Attorney General not be used as an apparatus of the head of the executive branch, for the power of the law is too great and pervasive to be used as a political tool of a single person.”
Guam’s three elected Attorneys General – Doug Moylan; Alicia Limtiaco; and Lenny Rapadas – have each had their critics, sometimes with good reason. It comes with the turf.
Charged with what he believed to be a mandate from the public to prosecute public corruption and to compel public officials to follow the law, as Guam’s first elected Attorney General Doug Moylan tested the limits of the office, and was criticized for what some perceive as tilting at nearly every windmill that came into view – from criminally and civilly prosecuting former Governor Carl Gutierrez and his political appointees, cases he lost, to suing then-Governor Felix Camacho to compel him to appoint members to the Procurement Appeals Board, a case he won; from trying to assert control over litigation by stipulating to a consent decree in federal court involving the Earned Income Tax Credit while the Governor was off-island to appearing as counsel and confessing error on behalf of the Guam Election Commission; from suing the Guam Police Department and Department of Corrections to compel them to pay overtime to being sued himself for refusing to sign off on an attorney-client contract between the Guam International Airport Authority and a private law firm for no apparent other reason than that as the Government of Guam’s “Chief Legal Officer” he didn’t have to. (Disclaimer: I was involved in many of these cases.) Finally, in a case that went all the way to the U.S. Supreme Court and was decided after he left office, Moylan successfully challenged the Governor’s interpretation of the term “tax valuation,” in that part of Guam’s Organic Act’s which proscribes public indebtedness exceeding 10% per year of “aggregate tax valuation of the property in Guam.” Every one of the cases Moylan won or lost helped clarify the role of the elected Attorney General on Guam. And win or lose, no one can ever say that Guam’s first elected Attorney General didn’t try to hold the government and public officials accountable to the voters who elected him.
Alicia Limtiaco’s short time in office may be remembered more for her interest in addressing international human trafficking as a stepping-stone to the U.S. Attorney’s Office than prosecuting local crimes and providing legal support to the host of departments, boards, agencies and officials that desperately needed it, but her real legacy as Guam’s second elected Attorney General is that she closed John F. Kennedy High School for failing to correct a decade’s worth of health, fire and safety violations. An appointed attorney general would never have had the temerity to challenge the government’s finances by closing schools as she did. She also sued the Governor’s appointed directors of the Department of Revenue & Taxation over the licensing of illegal gaming devices, with the Governor’s Office attempting to interject its own opinion of the law with legal analysis that had been authored by lawyers for the owners of the machines. Had Limtiaco asked the Governor’s permission before shutting down JKF High School or suing the Governor’s appointed directors to follow the law, she would not have received it.
Just like his elected and appointed predecessors, Lenny Rapadas who currently serves as Guam’s third elected Attorney General has had his share of criticism. Rather than accede to the Governor’s demand to negotiate settlement of a judgment in a tax collection case for what some see as pennies on the dollar, Rapadas withdrew, because one federal court has held that the Organic Act requires him to, a ruling that does not extend beyond income tax matters. Rapadas has declined to step aside voluntarily where the Organic Act does not require him to do so, most recently in federal litigation involving the closing of the Ordot solid waste landfill. And Rapadas has had to sue the directors of Revenue and Taxation over licensing of gambling machines again because the new Governor, based on faulty legal reasoning supplied by private lawyers, is saying that he thinks these particular devices are in fact legal. In each of these cases, it has been suggested, conflicts between the Governor and the Attorney General have arisen when the Governor’s decisions and legal analysis have been influenced if not authored by lawyers representing private interests and political supporters, not by career government lawyers in the office of an independently elected Attorney General answerable only to the voters.
We need only look to our neighbor to the north to see what happens when an appointed attorney general signs off blindly on whatever the governor puts before him. Both are facing criminal charges that would likely never have had reason to see the light of day if the CNMI’s attorney general were elected rather than appointed. Are these the kind of “good old days” we’re missing back home in Guam?
Tension between elected Attorneys General and Governors isn’t a sign of something that needs to be changed back to the way things were. It is proof that the system is working precisely as it was intended when we asked Congress to change it.
Robert M. Weinberg has practiced law on behalf of elected and appointed attorneys general in the State of Alabama; the Federated States of Micronesia (Pohnpei); Guam; and the Commonwealth of the Northern Mariana Islands (Saipan). He currently serves the government of Guam as an Assistant Attorney General assigned to the Civil Litigation/Solicitors Division of the Guam Attorney General’s Office. The views expressed here are entirely his own.
