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Justices hear arguments on emergency motion

by Mindy Aguon

Guam - It's just a matter of time before the Supreme Court of Guam decides whether it will hear a writ request filed by former governor Carl Gutierrez and Senator Frank Aguon, Jr. on an expedited schedule. Gutierrez and Aguon allege the seven members of the Guam Election Commission's board of directors were not legally appointed and therefore they've asked for the certification of the gubernatorial election to be vacated.

A Supreme Court panel made up of Chief Justice Robert Torres, Justice Kathryn Maraman and CNMI Pro-Tem Justice Miguel Demapan have been left to decide whether to grant an emergency motion to expedite the briefing schedule and oral arguments for a writ request or to have the Superior Court  address the merits of the case first. Their decision will determine whether attorneys will be working through the Christmas holiday.

Gutierrez Aguon weren't present for today's Supreme Court hearing - their attorney, Ignacio Aguigui, tried to persuade justices to grant their emergency motion to expedite a briefing schedule and oral arguments for a writ request they've made to have the court to vacate and expunge the GEC board's certification of the gubernatorial election results. "I think that's the very issue that we're asking the court to decide, whether or not there was a validly constituted Election Commission to declare a winner of the General Election with regard to the gubernatorial race," Aguigui stated.

But Chief Justice Torres was quick to ask why the issues raised in the writ of mandamus weren't brought up in the election challenge Gutierrez and Aguon filed in the lower court.  Aguigui responded by saying the information they allege about the GEC board members' terms expiring had to be actively sought after by his clients. He added, "A successor to the governor has got to be qualified. And I think that that qualification inherently involves whether there was a valid act of the Guam Election Commission in certifying the results of the 2010 General Election and without a valid successor to the governor the Organic Act provides that the sitting governor holds office until there's some finality."

But attorneys for the Guam Election Commission and the real parties in interest, Governor-elect Eddie Calvo and Lieutenant Governor-elect Ray Tenorio, do not believe the matter constitutes an emergency of such great public importance that's been alleged. "We believe there is no emergency because we believe that even if they were successful in proving their assertion in this writ, it would not affect the outcome of the election, which it's seeking to stop the appointment of the sitting officers, the elected officers," noted Attorney Rawlen Mantanona, legal counsel for the GEC.

Attorney Mike Phillips, who represents Calvo and Tenorio, told justices that granting the petitioner's emergency motion thwarts the will of the people, arguing, "They [Gutierrez-Aguon] admit they lost the election; that's really the only undisputed fact before the court and that's what we have to deal with." He added, "Here we have one hypothetical question that's asked and a ruling that doesn't go to what the real issue is: who should be the next sitting governor?"

Attorney Phillips argued that what Gutierrez and Aguon are actually seeking and the reason for the emergency motion would be historic for the island. "It's a backdoor method to stay an inauguration, and at the end they've presented you the results where they said they lost," he said.

"The court intends to expeditiously address the motion to expedite the hearing on the writ," Chief Justice Torres would then announce, adding, "and we'll issue a decision shortly."

While a decision is expected either later tonight or early tomorrow morning, District Court Judge John Coughenour issued an order today granting the motion filed by Calvo-Tenorio attorneys to return the local election contest back to the Superior Court of Guam.  The judge also stayed the federal election challenge until the Superior Court completes the election contest case that is currently assigned to Judge Steven Unpingco.

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