Pending in the Supreme Court of Guam is a request for declaratory judgment filed by Gov. Lou Leon Guerrero, who is seeking clarification on the duties of the attorney general under the Organic Act.
Specifically, the governor wants to know whether or not the attorney general may withdraw from representing agencies and what recourse may be employed in the face of a conflict of interest.
The governor’s legal action stemmed from Attorney General Douglas Moylan’s retreat from 22 government agencies being investigated by his office. In pulling out his representation, Moylan cited a conflict of interest. Can he prosecute and represent a government office at the same time? The dilemma has left government agencies legally orphaned, thus stalling procurements and contracts that needed the attorney general’s review and approval.
The Office of the Attorney General as it exists today was constitutionally created by the Guam Organic Act Amendments of 1998, which converted the office from an appointive to a four-year elective position and designated the attorney general as the “chief legal officer of the government of Guam.”
Moylan was the first elected attorney general, serving from 2003 to 2007. Guam voters decided to bring him back during the 2022 election. Whether you’re a fan or a detractor, you can always count on Moylan to bring legal animation to the Office of the Attorney General, in contrast to the passiveness of his successors and predecessors.
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While conflict of interest is a common quandary in a small community like Guam where pretty much everyone is related to one another, Moylan's predicament involves the nature and duties of his office.
Conflict of interest and other legal complexities are inherent in the AG’s office, notwithstanding its form. The current legal dilemma is not the first to confront Moylan. In 2004, he was at loggerheads with the Guam International Airport Authority over the airport officials’ move to retain private legal counsel. One of the early conflicts he had to navigate was the attorney general’s job as the chief prosecutor and, at the same time, the legal counsel for government agencies. He sued the airport authority, challenging its $1 million legal service contract with Mair Mair Spade & Thompson.
A 2004 Guam Supreme Court decision tackled another layer of complexity related to the airport authority’s retention of a private legal firm, which was authorized by a local statute enacted by the Guam legislature prior to the 1998 Amendments. The law also authorizes the Guam airport to hire a private law firm instead of the attorney general for any civil actions "in which it is an interested party."
The airport’s contract with Mair Mair Spade & Thompson required the attorney general’s signature. But Moylan resisted the idea of autonomous government agencies hiring private law firms on public tab. He challenged the legislature’s authority to clip the attorney general’s powers.
Ruling in favor of the airport authority, the Supreme Court directed the attorney general “to approve as to form and legality” the legal services contract between GIAA and the private law firm.
“We hold that the 1998 Amendments bestowed common law powers and duties upon the attorney general of Guam. We further hold that those common law powers and duties may be subject to increase, alteration or abridgement by the Guam legislature,” reads the 2004 decision.
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The history of the AG’s office and the rationale for the 1998 Amendments was an equally interesting part of the Supreme Court doctrine. It noted that "controversies have arisen in the past because of the appointment nature of the position of attorney general. Public concerns revolve around political interference with investigations, inefficiency of casework and dismissal of the attorney general without cause."
The "growing number of complaints" prompted a survey to determine an acceptable resolution. "It was clear that respondents (69 percent) favored an elected position," the decision said.
In the meantime, we await the Supreme Court of Guam’s declaratory judgment that will resolve the conflict of positions between the governor and the attorney general.
For what it’s worth, at least we have an elected attorney general who is accountable to the people and not beholden to the governor.
