THE ORCS OF ADELUP

By Tim Rohr

Beginning at about 1:27:58 into this past Monday's Tall Tales, the show's host, Bob Klitzkie, takes a call from Senator Chris Duenas relative to what Bob characterizes as a "judicial free-for-all:" 

BOB: "...the Supreme Court is saying for this so-called Declaratory Judgment anybody who wants to can file an amicus brief without going through the process of asking for leave. So they’re turning a horrible judicial procedure - you wouldn’t think they could make it any worse - but they’re turning it into a judicial free-for-all because anyone of your constituents who can put together something that says Amicus Brief on the top and pony up the filing fee can probably go over and file it at the Supreme Court." 

Duenas concurred: 

"...if you look at the April 14th date it’s like general public - so how does general public even know how to prepare a matter to bring before the court in terms of praying on the court for the purpose and especially since really the question is not necessarily about pro or con on the issue it’s about a matter of law. "

Bob then cuts to the chase:

"Now Chris. Stop and step back for a minute and consider - as you say - that anybody can file on the 14th of April. Which side of the game do you think this favors?" 

Duenas responds:

"I mean absolutely. You could see the pile on already." 

What both Bob and Sen. Duenas are referring to is that the governor and her ACLU Orcs are already aggressively positioned to flood the Supreme Court with "template" briefs while the so-called pro-lifers have no leadership or direction even minutely comparable to what the governor and the ACLU is providing to their death-in-the-womb clones.

This, of course, is an indictment of why well-intentioned pro-life efforts, for decades, have failed, and will fail now. Pro-lifers traditionally rely on religious and emotional pleas - stuff legislatures and courts have no room for. 

Note: The Esperansa Project purposely divorced itself from church-based groups and religious and emotional arguments, which is why it was successful in reining in what was, in 2008, the most un-regulated abortion industry in the nation: Guam's. Beginning in 2008, Esperansa saw to the introduction of several pro-life bills, eight of which became law, and three of which the governor is aiming at in her action before the Supreme Court of Guam.

Meanwhile, allow me to demonstrate what Bob means when he asks Duenas "which side of the game do you think this favors?"

Upon the announcement that the Supreme Court of Guam is "asking for interested members of the community to weigh in on whether Guam’s 1990 abortion ban should stand," the Pacific Daily News ran an article which included what appeared to be a helpful note for the average "members of the community:"

"Interested parties can file a so-called “amicus brief” as an adviser to the case. For more information on how to submit a brief, contact the Clerk of the Supreme Court at justice@guamsupremecourt.com."

Pursuant to this very nice advice, I sent the following email:

The Court responded as follows. 

Notice that the Court did not provide any details on HOW to file - which was my direct question - only WHERE to file. Anyone who has ever dealt with the courts will know that HOW to file - i.e. the proper format - means all the difference between whether your "filing" will be thrown in the trash or counted. 

A few minutes later, the Court apparently had second thoughts about it's SPARSE response and sent me this:

However, this was even more insulting in a way. 

What lay person - who has no idea of how to communicate with the Supreme Court of Guam - would even know where to find "RULE 14?" 

Incredibly, but commensurate with Bob's cryptic question ("who do you think this favors?") the Supreme Court of Guam did NOT even provide a link or an attachment to said "RULE 14." 

But you can bet the governor and the ACLU know Rule 14, and have already crafted their template letters for their hordes. 

Having spent the last five years learning how to navigate the judicial system due to a personal matter, I at least knew what to google. Following is my filed Amicus Brief. Perhaps it can be used as a template even if you're not an Orc.

Note: It appears I forgot the "jurat," though I don't know if it's required. But just in case, go ahead and add "I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief" before the "RESPECTFULLY SUBMITTED..." and then your name. 

PDF here

THERE STILL ARE NO DOCTORS WILLING TO DO THEM

By Tim Rohr

Kandit News has published a story titled: "Guam pro-life advocates place their hopes in Douglas Moylan following gubernatorial threat to veto Heartbeat Act" in which I am quoted. Thank you Troy for the reference and the accurate quote. 

AG Moylan's lifting of the injunction on the 1990 "Belle's Law" is the right thing to do, not just because it outlaws abortion from conception, but because doing so will put the whole matter back where it now belongs: before the lawmakers and the people who elect them. 

If the 37th Guam Legislature wants to pass a bill making abortion fully legal then we have a governor eager to sign it. However, even though abortion remains fully legal now, there still are no doctors willing to do them. 

And "why not" is a question that needs to be put to those physicians who publicly advocate for abortion. Maybe we can find out the real reason they won't do them. 

KLITZKIE: IT'S WHAT ATTY. GENERAL LEEVIN CAMACHO DIDN'T DO

This letter was published in the Pacific Island Times on August 8, 2022.

*****

Attorney General Leevin Camacho marshaled enough judicial authority to employ the magic words, “void ab initio,” to deep-six PL 20-134, former Sen. Belle Arriola’s anti-abortion law. 

“Void ab initio” means having no legal effect from inception. A law, agreement, sale, or other action that is void has no legal effect. A void action cannot be ratified or validated. End of story, right?

Maybe not. The answer one gets depends on the question he asks. Here’s what Leevin said, “We limit our opinion in this case to instances where laws are passed in clear violation of established constitutional rights.” So Leevin limited the question he asked. 

But try this: type in “effect of an unconstitutional statute” on Google search. The first hit you’ll get is an ancient Indiana U. law review. 

Thumb through the pages and you’ll find this entry: “…the theory that the statute is void ab initio should be tested. Suppose a case where the court declares a statute unconstitu­tional today, and then six months hence reverses this decision and decides that the statute is constitutional. If the void ab initio doctrine be applied, the first decision would leave a situation similar to that described by the Indiana court, as if no statute had been passed.

“[But] All courts seem to agree that the void statute (if such a contradiction be permitted) is resurrected and is effective as from the date of its enactment. The purported enactment which was said to have been fatally smitten at its birth by the constitution has by some legal hocus pocus been cured of its congenital disease. This is also the Indiana rule.” 

So, the “Indiana rule”— take note, all courts!— mandates the resurrection of a void ab initio (dead) statute. What Leevin didn’t do is ask this question: “Is an unconstitutionally void ab initio (dead) statute resurrected when a court overrules the constitutional infirmity?” 

Sure, we’re closer to Indonesia than Indiana but Leevin might have reached a different result had he plumbed the depth and tested the breadth of the Indiana rule in American jurisdictions.

Leevin told us: “We recognize that ‘[a]n analysis of the constitutionality (or organicity) of a local statute must begin with the general rule that legislative enactments are presumed to be constitutional.’” Along the same lines, attorneys general routinely defend the statutes in their respective jurisdiction if such can be accomplished absent the use of an antiemetic. 

If it can be argued that the Dobbs decision is the talisman that resurrects Belle Arriola’s law, then Leevin should move to dissolve the district court injunction that prevented the enforcement of that law. Otherwise, the answer to his truncated question is the death of Belle Arriola’s law. If he moves to dissolve the injunction, then we’ll have a judicial declaration of the viability of Belle’s law. (There’s no need to seek a hokey declaratory judgment as Leevin did in the quarantine hotel procurement matter.)

In the benediction of his opinion, Leevin tells us, “Moving forward, difficult moral and policy questions such as the decision of whether to allow or limit abortion must be decided by the Legislature, not the courts.” 

Our legislature has spoken unanimously on the moral and policy question. The reason that the voice of the people, i.e., the legislature, is muted and mooted is apparent. 

Because the 20th Guam Legislature did not have the power to pass P.L. 20-134 in the first place, it is void ab initio and has had no legal effect on Guam since its passage.

It’s not what Leevin did; it’s what Leevin didn’t do.

Bob Klitzkie is a former senator and Superior Court of Guam judge pro tem. He hosts the talk show, “Tall Tales,” on KUSG-FM (93.3 FM) weekday afternoons from 4 to 6 p.m. Send feedback to klitzkie@hotmail.com.