GHOSTS THAT SLAY

Link to online version (reference links added)

I have a couple of “to be continued” series going on: informed consent and parental alienation. We will get back to those soon. Meanwhile, in this column we are going to detour into the strange world of “declaratory judgment.”

On October 31, 2023, the Supreme Court of Guam issued a declaratory judgment on the validity and enforceability of Public Law 20-134, aka “Belle’s Law.” Their judgment: Unenforceable.

It is serendipitous that the Court issued its judgment on Halloween. Belle’s Law, after having a stake driven through its heart when it was only four days old (enjoined by the District Court), nevertheless - having never been repealed - silently remained, like a ghost, on the pages of the Guam Code for the next 32 years,

Note: "Belle's Law" outlawed abortion in Guam in 1990.

As we know, the darn thing recently sprang to life, stake through its heart and all, after the U.S. Supreme Court overturned Roe v Wade, and Douglas Moylan, vowing to enforce the laws of Guam, was elected to the office of Attorney General.

To make the story even more “halloweeny,” the provision in the Guam Code allowing for this sort of Supreme Court judgment has its own ghostlike - now you see it now you don’t - history.

The law permitting the governor or the legislature to seek a declaratory judgment from the Supreme Court, came to life when the Supreme Court was organized in 1993.

13 years later, in 2006, the provision was repealed with a one sentence bill (“§4104 of Title 7GCA is hereby repealed”) authored by then-Senators Robert Klitzkie, Benjamin F. Cruz, and Mark Forbes. Then-Governor Camacho vetoed it, the veto was overridden, and the bill became P.L. 28-146, sending the provision to its grave.

Two years later, the law was resurrected by the late-Senator Ben Pangelinan via a bill that became Public Law 29-103.

Pangelinan’s rationale for bringing the law back from the dead was that “several states permit '' similar laws. “Several states” maybe, but not most states. As of 2023, only eleven states permit their governors and legislatures to seek declaratory judgments from their state supreme courts - and for good reason.

It’s not hard to see, especially given the usual tug-of-war between governors and legislatures, that bringing in the third branch of government to take sides in a battle between the other two branches endangers the doctrine of the separation of powers -  the thing that perhaps best preserves our system of government from sinking into tyranny.

Probably counting on such high-sounding words such as “Supreme Court” and “Declaratory Judgment,” as well as public ignorance of the matter, the governor functionally ran to “Daddy” for help to beat down “those mean people,” i.e. anyone opposed to her pro-abortion agenda.

For most of us little people, the word “judgment” coming from a court, and especially a court with the word “supreme” in front of it, carries the feel of “the court has spoken so shut up and sit down,” or in the governor’s fabled words regarding another matter: “basically, you have no say” - which of course is what the governor was looking for.

However, a declaratory judgment is not a judgment like most of us think since it requires “nobody to do nuthin’” - bad grammar intended. In other words, there is no order of “consequential relief.” So it’s really just an advisory opinion, which is really how it should be labeled in the Guam Code if we are to continue to endure the thing.

However, like Senators Klitzkie, Cruz, and Forbes believed in 2006, we should not endure the thing. We should get rid of it. The tug-of-war between the executive and legislative branches of government is exactly why these branches are co-equal in the first place and we don’t need the judicial branch taking sides.

By the way, for the same reason, I also oppose lawmakers running to the Attorney General for an opinion every time they are looking to shoot down legislation they don’t like.

Writing in the Harvard Law Review almost 100 years ago, Felix Frankfurter wrote:

“The judiciary, today, in dealing with the acts of their coordinate legislators, owe to the country no greater or clearer duty than that of keeping their hands off these acts… For that course - the true course of judicial duty always - will powerfully help to bring the people and their representatives to a sense of their own responsibility.”

And speaking of halloween and ghosts, Frankfurter concluded:

“It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay."

Tim Rohr has resided in Guam since 1987. He has raised a family of 11 children, owned several businesses, and most recently been active in local issues via his blog, JungleWatch.info, letters to local publications and occasional public appearances. He can be contacted at timrohr.guam@gmail.com.