(Updated Oct. 22, ;4:58 p.m.)
Gov. Lou Leon Guerrero has decided to appeal the Ninth Circuit Court’s ruling on Guam’s plebiscite law, acknowledging that she is taking a gamble that may drag other similar policies into the game.
“While this has always been my personal belief, I must also weigh it against the careful, thorough legal advice of our attorney general and special assistant AGs. They believe that there is potential for significant risk associated with an appeal to the current U.S. Supreme Court,” the governor said in her special address Monday.
In a ruling issued in July, the Ninth Circuit Court held that limiting the political status vote to “native inhabitants of Guam” is a violation of the Fifteenth Amendment. The court’s decision stemmed from a lawsuit filed in November 2011 by Air Force veteran Arnold Davis, who was denied a chance to register for the yet-to-be-scheduled self-determination plebiscite.
Leon Guerrero said she will ask Attorney General Leevin Camacho to appoint Sen. Therese Terlaje and attorney Mike Phillips to lead Guam’s appeal in the U.S. Supreme Court.
In a statement issued on Tuesday, Terlaje welcomed the governor's decision to appeal the ruling, but declined the offer to lead the legal team.
"I am a senator for the people of Guam and cannot be a lead attorney, but I will assist the Governor, the AG, and Attorney Phillips in any way possible in moving forward with this historic appeal before the U.S. Supreme Court," said Terlaje a lawyer by profession.
"Special AG Julian Aguon and Deputy AG Orcutt laid a brilliant foundation in the case. The new AG, deputy AGs, Special AG Aguon, and Attorney Mike Phillips are great legal minds and I am confident they will do everything possible to preserve our rights at this point," she added.
Terlaje thanked the governor "for standing for what she believes in, and for providing the resources to achieve a successful appeal on such short notice." "This plebiscite law is just one part of a decades long, multi-pronged strategy that Guam must pursue simultaneously with critical negotiations with the U.S. and seeking support at the U.N. We must all work together," the senator said.
Camacho said his office has fully briefed the governor of the significant risks involved with appealing the plebiscite case. He said several factors were considered before a determination was made to appeal.
"The role of the attorney general as chief legal officer is to advise the government about the possible results and risks of legal action. The OAG respects the decision to move forward with the appeal and will facilitate the transition of representation for this phase of the plebiscite case to attorney Mike Phillips," Camacho said in a statement.
Leon Guerrero said she recognizes that seeking the high court’s intervention comes with “potential risks” that include “the court going beyond the narrow holding of the Ninth Circuit and invalidating our plebiscite under the Fourteenth Amendment, which could put a host of other programs, including the Chamorro Land Trust, at risk.”
“While I appreciate the risks involved, I cannot deny our people the right of an appeal so long as others may be willing to champion it,” she said.
The federal government in 2017 sued the government of Guam and the Chamorro Land Trust Commission, stating that the more than 20-year-old Chamorro Land Trust Act discriminates based on race, in violation of federal housing laws. A federal judge ruled last year that the U.S. government has failed to prove at this time that the CLTC amounts to a racially discriminatory policy, but the decision, just the same, raised an open-ended question about the nature of Guam’s land program.
In the plebiscite case, Leon Guerrero said, “just a few days before our deadline to appeal, I have been asked by other attorneys to not forsake our right to appeal. These legal experts believe Guam must appeal regardless of the Court’s composition or the risks it may invite. They believe history must be served by making our case at the U.S. Supreme Court.”
The Ninth Circuit ruled that, “Just as a law excluding the native inhabitants of Guam from a plebiscite on the future of the territory could not pass constitutional muster, so the 2000 plebiscite law fails for the same reason.”
The government of Guam spent nearly a million dollars in legal fees to challenge the district court’s decision.
“For decades, every governor who sat in this Office has been asked to make tough choices. Whether their challenges were made by man or sheer acts of God, every governor sought the advice of experts, weighed the facts, and acted in accordance with his heart and head,” Leon Guerrero said.
“I have always believed that our right to self-determination belongs to the native inhabitants of Guam because only the native inhabitants of Guam were denied that most basic of human rights. Let me be clear: we value everyone that has made Guam home, but a plebiscite is meant to remedy a historical injustice—and that remedy belongs to the native inhabitants of Guam.”
On Sept. 1, hundreds joined the Fanohge March for Self Determination on Marine Corps Drive, in protest of the Ninth Circuit Court’s decision. “Some argue that Chamoru self-determination is a divisive issue, I don't believe it is. I believe that all who call Guam home, all who love it have different histories, but there are certain things that bind us,” said University of Guam professor Michael Bevacqua, who helped organize the event.
“One can be a vision for a better future for the island that is defined by justice and by respect. Chamoru self-determination is about recognizing the history of this island and uniting behind the idea that there should at least be a symbolic chance for Chamorus to express what they want for their island's future. It does not take anything away from others, but can help give the Chamoru people something that has long been denied them.”
Elyssa Santos, another event organizer, described the Fanohge March as a “demonstration of solidarity.”
“It's important for all communities to attend because we all have important roles to play in the shaping of Guåhan's future. While we are bringing attention to the right of CHamorus to a plebiscite vote, everyone is valued in this call for restorative justice,” she said. “It's really a matter of learning our history or, in some cases, re-learning history to understand the historical context of our self-determination movement.”