IN RE: REQUEST OF LOURDES A. LEON GUERRERO, I MAGA' HÅGAN GUÅHAN, RELATIVE TO THE POWER OF THE EXECUTIVE BRANCH TO ESTABLISH, MAINTAIN, AND OPERATE QUARANTINE FACILITIES IN GUAM AND TO PROMULGATE QUARANTINE AND SANITATION REGULATIONS FOR THE PROTECTION OF GUAM AGAINST THE IMPORTATION AND SPREAD OF DISEASE. ( 2021 )

IN THE SUPREME COURT OF GUAM
IN RE: REQUEST OF LOURDES A. LEON GUERRERO,
I MAGA’HÅGAN GUÅHAN, RELATIVE TO THE POWER OF
THE EXECUTIVE BRANCH TO ESTABLISH, MAINTAIN, AND
OPERATE QUARANTINE FACILITIES IN GUAM AND TO
PROMULGATE QUARANTINE AND SANITATION REGULATIONS
FOR THE PROTECTION OF GUAM AGAINST THE
IMPORTATION AND SPREAD OF DISEASE
Supreme Court Case No.: CRQ20-002
OPINION
Cite as: 2021 Guam 6Request for Declaratory Judgment Pursuant to
Section 4104 of Title 7 of the Guam Code Annotated
Argued and submitted on May 7, 2021
Via Zoom video conference
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 2 of 36
Appearing for Petitioner Appearing for Party in Interest
I Maga’hågan Guåhan: Public Defender Service Corporation:
Sophia Santos Diaz, Esq. Brian Eggleston, Esq.
Leslie A. Travis, Esq. Assistant Public Defender
Office of the Governor of Guam Public Defender Service Corporation
Ricardo J. Bordallo Governor’s Complex 779 Rte. 4
Adelup, GU 96910 Sinajana, GU 96910
Appearing for Party in Interest Appearing for Party in Interest
Department of Public Health and I Mina’trentai Sais Na Liheslaturan Guåhan:
Social Services: Ana Won Pat-Borja, Esq.
Shannon J. Taitano, Esq. Legislative Counsel
Chief Deputy Attorney General Guam Legislature Legal Bureau
163 W. Santo Papa
Joseph A. Perez, Esq.
Hagåtña, GU 96910
Janice M. Camacho, Esq.
Assistant Attorneys General
Appearing for Amicus Curiae
Office of the Attorney General Attorney General of Guam:
590 S. Marine Corps Dr. James L. Canto II, Esq.
Tamuning, GU 96913 Deputy Attorney General
Jordan Lawrence Pauluhn, Esq.
Assistant Attorney General
Office of the Attorney General
590 S. Marine Corps Dr.
Tamuning, GU 96913
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 3 of 36
BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;
KATHERINE A. MARAMAN, Associate Justice.
PER CURIAM:
[1] Petitioner Lourdes A. Leon Guerrero, I Maga’hågan Guåhan (“the Governor”), filed a
Request for Declaratory Judgment under 7 GCA § 4104 requesting this court interpret portions
of the Islan Guåhan Emergency Health Powers Act (“EHPA”) (10 GCA § 19101 et seq. (2005))
relative to the Governor’s power over public health and quarantine in the Organic Act of Guam
(codified at 48 U.S.C.A. § 1421g(a) (Westlaw through Pub. L. 117-20 (2021)). The Governor
also requested we declare sections 19604 and 19605 of the EHPA inorganic and void for
violating separation of powers principles.
[2] The Organic Act of Guam bestows specific quarantine powers to the Governor, and we
hold that the legislative enactment of section 19605 impermissibly encroaches upon that power.
Section 19605 is inorganic and void. We also hold that section 19604 does not violate separation
of powers and does not permit a statutory challenge to a quarantine order issued by the
Department of Public Health and Social Services (“DPHSS”). Even with no statutory challenge
in the EHPA to a quarantine order, we hold that constitutional challenges are permitted and
subject to the principles set forth by the United States Supreme Court in Jacobson v.
Massachusetts, 197 U.S. 11 (1905). Finally, we hold that the courts of Guam have the inherent
power to review agency action for arbitrariness, capriciousness, and abuse of discretion.
I. FACTUAL AND PROCEDURAL BACKGROUND
[3] On March 14, 2020, the Governor issued an executive order declaring a state of
emergency to respond to the novel coronavirus (“COVID-19”). See Exec. Order No. 2020-03 at
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 4 of 36
1. Following the first three confirmed cases of COVID-19, the Governor implemented several
emergency measures by executive order to contain the spread of COVID-19, including the
quarantine of incoming travelers in government facilities. See Exec. Order No. 2020-04 at 1-2.
The Governor also evoked her power under the EHPA and designated DPHSS as the Public
Health Authority. See Exec. Order No. 2020-03 at 1. DPHSS has issued and continues to issue
directives and quarantine guidance memoranda as an evolving response to COVID-19. Compare
DPHSS Guidance Mem. 2020-11 Rev4 (July 24, 2020) (no quarantine or negative test required
for incoming travelers from low risk areas staying less than five nights), with DPHSS Guidance
Mem. 2020-11 Rev12 (June 18, 2021) (all incoming travelers subject to a ten-day quarantine
period with exemption for fully vaccinated individuals and home quarantine for those arriving
with negative COVID-19 test).1
[4] As in other jurisdictions across the nation, lawsuits were filed challenging executive and
agency actions in response to measures implemented to slow the transmission of COVID-19.
The Superior Court of Guam heard individual challenges to quarantine orders issued by DPHSS.
See, e.g., Ikei v. Dep’t of Pub. Health & Soc. Servs., SP0138-20/SP0141-20 (Finds. Fact &
Concl. L. at 2 (Oct. 27, 2020)). The Public Defender Service Corporation (“PDSC”) was
appointed to represent individuals or groups of individuals subject to quarantine who were not
otherwise represented by counsel. See Igros v. Dep’t of Pub. Health & Soc. Servs., SP0127-20
(Gen. Order Appointing Pub. Def. Serv. Corp. Represent Persons in Quarantine & Entering
Quarantine (Sept. 25, 2020)). Some challenges succeeded in releasing individuals from
government facilities to home quarantine or without requiring home or self-quarantine. See
1
DPHSS Guidance Memoranda are posted online at http://dphss.guam.gov/covid-19-jic-releases-
executive-orders/.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 5 of 36
Bellis v. Dep’t of Pub. Health & Soc. Servs., SP0207-20 (Dec. & Order at 5 (Dec. 3, 2020));
Ikei, SP0138-20/SP0141-20 (Finds. Fact & Concl. L. at 26-27).
[5] Against this backdrop, the Governor requested declaratory judgment over five questions
of law. Req. Declaratory J. at 6 (Dec. 24, 2020). First, whether “CDC guidelines are mandatory
in Guam.” Id. at 11. Second, whether CDC guidelines about quarantine for travelers are
“binding on DPHSS such that DPHSS may not implement a quarantine policy that is more
restrictive than CDC guidelines.” Id. Third, whether quarantine orders may “be challenged on
constitutional grounds even where they reasonably bear a relationship to the public health
emergency and do not result in a plain and clear invasion of fundamental rights.” Id. And if yes,
“what level of scrutiny should be applied to the court’s review, whether rational, intermediate, or
strict?” Id. Fourth, whether a court may “grant a request for release from quarantine on the basis
of amenities provided in quarantine facilities.” Id. Last, whether a court may “modify a lawful
quarantine order issued by DPHSS or does such modification impinge on the Governor’s power
and duties to quarantine and protect against the spread of disease and interfere with the
operations of the Executive Branch,” and if so, “[u]nder what circumstances may a court modify
a lawful quarantine order issued by DPHSS?” Id.[6] PDSC filed an Interested Parties’ Motion to Deny Request for Declaratory Judgment or,
in the Alternative, Permit Public Defender Service Corporation to Intervene as Respondent on
Behalf of Incoming Travelers Subject to Quarantine. This court granted in part and denied in
part PDSC’s motion and certified two of the Governor’s questions for declaratory judgment.
The court also granted PDSC’s request to represent the interests of incoming travelers subject to
quarantine. The parties were invited to brief these two certified questions. First, may quarantine
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 6 of 36
orders be challenged on constitutional grounds? Order & Scheduling Order at 5 (Dec. 31, 2020).
If yes, what level of scrutiny should be applied to a court’s review, whether rational,
intermediate, or strict? Id. And second, may a court modify a quarantine order issued by
DPHSS? Id. If yes, under what circumstances, and does such modification impinge on the
Governor’s power and duties to quarantine and protect against the spread of disease and interfere
with the operations of the Executive Branch? Id. at 6.
[7] In her reply brief, the Governor asserted a new issue arguing 10 GCA §§ 19604 and
19605 of the EHPA were inorganic and void for violating separation of powers principles. We
exercised our discretion to review the newly raised separation of powers issue. See Second
Order & Scheduling Order at 2 (Mar. 9, 2021). The court also invited interested parties to brief
whether statutory challenges to quarantine orders are permitted under 10 GCA §§ 19604 and
19605, and, if so, how are sections 19604 and 19605 reconciled with the quarantine powers
granted to the Governor in the Organic Act? See id. at 3-4. The Governor moved to strike pages
5-13 of PDSC’s brief responding to the newly raised separation of powers issue. The Governor
argued that PDSC went beyond the separation of powers question. Given the complexity of the
questions before the court and the shifting nature of the litigation, we denied the motion and
invited the Governor to respond to PDSC in her supplemental reply brief. The court received
interested party briefs from PDSC, DPHSS, I Mina’trentai Sais Na Liheslaturan Guåhan (“the
Legislature”), and the Office of the Attorney General as amicus curiae.
II. JURISDICTION
[8] The Supreme Court has original jurisdiction over declaratory judgment actions. 7 GCA §
4104 (2005). The governor of Guam may request a declaratory judgment “as to the
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 7 of 36
interpretation of any law, federal or local” and “upon any question affecting the powers and
duties of I Maga’[håga] and the operation of the Executive Branch.” Id. In addition,
“declaratory judgments may be issued only where it is a matter of great public interest and the
normal process of law would cause undue delay.” Id.[9] By Order dated December 31, 2020, the court certified two questions for declaratory
judgment after scrutinizing the questions under a 7 GCA § 4104 subject matter jurisdiction
analysis. See Order & Scheduling Order at 5-6. The Governor’s questions requested
interpretation of local laws; therefore, the court could address the questions by declaratory
judgment. See id.
[10] In her Reply Brief, the Governor raised a new argument as a reply to PDSC’s statutory
interpretation of whether a court may modify a DPHSS quarantine order. The Governor asserted
for the first time that the Legislature exceeded its power by passing sections 19604 and 19605 of
the EHPA because those sections usurp the Governor’s quarantine powers in the Organic Act.
Reply Br. at 2 (Mar. 2, 2021). We exercised our discretion to review the new argument. Second
Order & Scheduling Order at 2 (“Issues raised for the first time in a reply brief are deemed
waived unless we decide to review them in the exercise of our discretion.” (quoting People v.
Borja, 2017 Guam 20 ¶ 28)).
[11] In its Supplemental Brief, PDSC argues jurisdiction is not proper because the questions
certified in the December 31, 2020 Order were certified under the first subject matter prong—
interpretation of the law. PDSC’s Suppl. Br. at 1 (Apr. 6, 2021). The Governor, however, raised
a new separation of powers issue, and separation of powers questions have only ever been
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 8 of 36
certified by the court under the second subject matter prong—questions affecting the powers and
duties of the Governor and Executive Branch. See id. at 1-2.
[12] Separation of powers questions are proper subject matter for declaratory judgment
actions. See, e.g., In re Request of Governor Carl T.C. Gutierrez, Relative to the Organicity &
Constitutionality of Pub. Law 26-35 (“In re Request of Governor Gutierrez II”), 2002 Guam 1 ¶
18 (“[T]he Governor may obtain review of an issue under section 4104 if his request affects his
powers and duties as Governor and the operation of the Executive Branch.”). In In re Request of
Governor Gutierrez II, we elaborated on the separation of powers questions permitted under
section 4104. Id. ¶ 25. “[S]ection 4104 contains limiting language, and the court is only
permitted to address questions that involve allegations that one branch’s actions ‘impinge’ on the
other branch’s operations.” Id. For instance, a declaratory judgment may not issue without an
action of the requesting party dependent on it. See id. ¶ 19 (collecting cases). Another instance
where a separation of powers question does not meet the jurisdictional requirements is when the
governor’s question “only concerns another branch of the government or . . . solely impacts
subordinate executive officers and agencies.” Id. ¶ 20.
[13] Here, the Governor asks whether the enacted legislation impinges on her Organic Act
powers and duties over quarantine. The Governor has issued executive orders for the quarantine
of incoming passengers and enabled DPHSS to issue quarantine rules and regulations. The
Governor’s question centers on her and the Executive Branch’s existing duties and exercise of
their power to fight the spread of COVID-19. This is not an instance when the question only
concerns another branch of government or solely impacts subordinate executive officers and
agencies. While we invited interested parties to brief the separation of powers issue because it
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 9 of 36
was raised within the context of a different certified question, this issue itself is proper subject
matter for declaratory judgment.
[14] Our declaratory judgment statute has two other requirements. “The declaratory
judgments may be issued only where it is a matter of great public interest and the normal process
of law would cause undue delay.” 7 GCA § 4104. These requirements are also met.
[15] Whether sections 19604 and 19605 infringe on the Governor’s Organic Act powers to
promulgate quarantine regulations is a matter of great public interest. “[P]ublic interest . . .
signifies an importance of the issue to the body politic, the community, in the sense that the
operations of the government may be substantially affected one way or the other by the issue’s
resolution.” In re Request of Governor Gutierrez II, 2002 Guam 1 ¶ 26 (quoting In re Request of
Governor Carl T.C. Gutierrez for a Declaratory Judgment as to Organicity of Guam Pub. L. 22-
42 (“In re Request of Governor Gutierrez I”), 1996 Guam 4 ¶ 4).
[16] This question has broad ranging impacts for all branches of government, the community,
and anyone traveling to Guam during a public health emergency. The Governor has a duty to
establish, maintain, and operate quarantine stations and promulgate quarantine regulations when
necessary. 48 U.S.C.A. § 1421g(a). Quarantine measures have been a part of the government’s
response to the COVID-19 public health emergency since the first cases were confirmed on the
island. Exec. Order No. 2020-04 at 1-2. Individuals subject to quarantine have challenged
quarantine orders issued by DPHSS in the Superior Court citing sections 19604 and 19605. See,
e.g., Ikei, SP0138-20/SP0141-20 (Finds. Fact & Concl. L. at 2). PDSC was appointed to
represent quarantined individuals. See Igros, SP0127-20 (Gen. Order Appointing Pub. Def.
Serv. Corp. Represent Persons in Quarantine & Entering Quarantine). DPHSS has an existing
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 10 of 36
governmental duty as the agency delegated by the Governor to develop and implement
quarantine policy. Exec. Order No. 2020-03 at 1; Exec. Order No. 2020-04 at 3. Three
interested parties and the Attorney General as amicus curiae submitted briefs to this court on the
powers of the Governor and the Executive Branch over quarantine and interpretations of sections
19604 and 19605. Resolving this separation of powers question significantly affects the
community and the operations of government. As this is a matter of great public interest, the
second jurisdictional requirement is met.
[17] The final jurisdictional requirement is that the normal processes of law would cause
undue delay. See 7 GCA § 4104. We analyze undue delay using a two-element test: “we must
(1) measure the delay relative to the time that would be consumed by litigating the issue through
the ‘normal process of law’ and (2) determine whether this delay is ‘excessive or inappropriate.’”
In re Request of I Maga’låhen Guåhan Eddie Baza Calvo Relative to the Interpretation &
Application of Organic Act Section 1423B & What Constitutes the Affirmative Vote of the
Members of I Liheslaturan Guåhan, 2017 Guam 14 ¶ 11 (citing In re Request of Governor
Gutierrez I, 1996 Guam 4 ¶ 7).
[18] In In re Request of Governor Gutierrez I, delay was not undue because a direct appeal
was pending from the Superior Court judgment in the request for declaratory judgment. 1996
Guam 4 ¶ 8. In In re Request of Governor Felix P. Camacho Relative to the Interpretation of
Section 11 of the Organic Act of Guam & the Education Facilities Construction Initiatives Act of
2001 (“In re Request of Governor Camacho III”), the anticipated comparative delay through the
normal processes of law was excessive or inappropriate given the needs and interest of the island
to expedite the resolution of questions over financing public schools. 2006 Guam 5 ¶ 10. We
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 11 of 36
find the unique circumstances here to constitute undue delay. Unlike In re Request of Governor
Gutierrez I, there is no pending direct appeal by DPHSS or by a quarantined individual of an
order issued by the Superior Court. Even an expedited appeal of such an order may be moot and
never reach substantive appellate review. The estimated difference in speed between reaching
these issues through the normal processes of law would be excessive or inappropriate relative to
an action under 7 GCA § 4104. Like in In re Request of Governor Camacho III, expedited
resolution of the issues here are in the interest of the island and travelers seeking entry into
Guam. Because litigating the issues through the normal processes of law would cause delay that
is excessive or inappropriate, the third requirement is met.
[19] Therefore, we clarify, the court has jurisdiction to issue a declaratory judgment on
whether statutory challenges to quarantine orders are permitted under 10 GCA §§ 19604 and
19605, and if so, how these sections are reconciled with the quarantine powers granted to the
Governor in the Organic Act.
III. STANDARD OF REVIEW
[20] “For cases brought before this court pursuant to our original jurisdiction, all issues are
determined in the first instance.” In re Request of Governor Camacho III, 2006 Guam 5 ¶ 12
(citing In re Request of Governor Gutierrez II, 2002 Guam 1 ¶ 8; In re Request of Governor
Felix P. Camacho Relative to the Interpretation & Application of Section 11 of the Organic Act
of Guam (“In re Request of Governor Camacho I”), 2003 Guam 16 ¶ 8, rev’d on other grounds,
Limtiaco v. Camacho, 549 U.S. 483 (2007)).
//
//
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 12 of 36
IV. ANALYSIS
[21] Although this litigation expanded after the Governor submitted her Reply Brief, that
expansion revealed a question central to the disposition of this matter. Before turning to the
questions certified in the December 31, 2020 Order and Scheduling Order, we must first
determine whether statutory challenges to quarantine orders are permitted under 10 GCA §§
19604 and 19605, and if so, how these sections are reconciled with the quarantine powers
granted to the Governor in the Organic Act. At the heart, this is a separation of powers issue.
See supra Part II. We address first whether the legislative enactment of sections 19604 and
19605 of the EHPA violate separation of powers principles by impinging on the Governor’s
Organic Act powers and duties over quarantine under 48 U.S.C.A. § 1421g(a).
A. Section 19604 Can Be Reconciled with the Quarantine Powers Granted to the Governor
in the Organic Act, But Section 19605 Cannot
1. Separation of Powers Principles
[22] Under the Organic Act, the government consists of three separate but co-equal branches
of government. See 48 U.S.C.A. § 1421a (“The government of Guam shall consist of three
branches, executive, legislative, and judicial . . . .”). The applicability of the separation of
powers doctrine in Guam is evident in the language of the Organic Act and has long been
recognized by this court. See Villagomez-Palisson v. Superior Court (Laguana), 2004 Guam 13¶ 14 (“This court has consistently held that the concept of separation of powers exists in
Guam.”); Hamlet v. Charfauros, 1999 Guam 18 ¶ 9 (“By its very language, therefore, the
Organic Act requires application of the constitutional doctrine of separation of powers to
government of Guam functions.” (quoting Taisipic v. Marion, 1996 Guam 9 ¶ 26)).
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 13 of 36
[23] As between the legislature and the executive, the separation of powers doctrine is
violated when “the Legislature has acted beyond its authority.” In re Request of I Mina’ Trentai
Dos Na Liheslaturan Guåhan Relative to the Use of Funds from the Tax Refund Efficient
Payment Trust Fund, 2014 Guam 15 ¶ 18. Invalid legislative actions “impinge upon the
Governor’s authority.” Id. This court adopted the U.S. Supreme Court’s framework in Nixon v.
Administrator of General Services, 433 U.S. 425, 443 (1977), for evaluating separation of
powers challenges. See People v. Perez, 1999 Guam 2 ¶ 17, overruled on other grounds by
People v. Shimizu, 2017 Guam 11. “[T]wo separate elements must be evaluated: (1) whether the
statutory provision prevents the accomplishment of constitutional functions and (2) if so,
whether the disruptive impact is justified by any overriding constitutional need.” Id.[24] Separation of powers issues are addressed on a case-by-case basis and “must begin with
the general rule that legislative enactments are presumed to be constitutional.” In re Request of
Governor Gutierrez II, 2002 Guam 1 ¶ 41. The party alleging that a statute is unconstitutional
bears the burden of proof. Id.[25] The Governor argues 48 U.S.C.A. § 1421g(a) grants her “ultimate authority” over
quarantine. Reply Br. at 4. The Legislature argues against an interpretation of § 1421g(a) that
suggests the Governor has an enhanced quarantine power. Rather, the Legislature contends the
Governor’s power in § 1421g(a) is subject to the laws of Guam and the Organic Act grants
legislative power and authority to the Legislature of Guam. Legislature’s Br. at 6 (Apr. 6, 2021).
Therefore, the Legislature argues it has concurrent police and lawmaking power to legislate
quarantine. Id.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 14 of 36
[26] The Governor counters that the Legislature’s Organic Act powers must be exercised
consistently with other provisions of the Organic Act, and the Legislature cannot enact laws in
derogation of § 1421g(a). Suppl. Consol. Reply Br. at 2 (Apr. 26, 2021). The Governor offers
the 1986 Amendment to § 1421g(b) in support of her interpretation of § 1421g(a) that ultimate
quarantine authority vests in her. Id. at 22-26. Specifically, the Governor cites the legislative
history of the amendment to § 1421g(b), which changed “governor” to “government.” Id. at 22-
23. This change provided the government of Guam authority to organize its education system as
opposed to that authority residing singularly with the governor. See S. Rep. No. 99-236, at 4
(1986) as reprinted in 1986 U.S.C.C.A.N. 1843, 1845. Unlike § 1421g(b), the subsection at issue
here—§ 1421g(a)—has never been amended. Thus, the Governor argues § 1421g(a) grants her
ultimate authority over public health services and quarantine. Suppl. Consol. Reply Br. at 18,
26.
[27] We agree with the Governor’s interpretation of “subject to the laws of Guam” in §
1421g(a)—the phrase does not describe ordinary separation of powers doctrine. Under § 1423a,
the Legislature has a general grant of authority to legislate quarantine absent a more specific
grant elsewhere in the Organic Act. See 48 U.S.C.A. § 1423a (“The legislative power of Guam
shall extend to all rightful subjects of legislation not inconsistent with the provisions of this
chapter and the laws of the United States applicable to Guam.”). Contrastingly, the Governor
has enumerated powers to establish, maintain, and operate quarantine stations and promulgate
quarantine regulations. 48 U.S.C.A. § 1421g(a). And as we stated, “a narrower, more specific
provision of a statute takes precedence over a more general provision of the same statute.”
Camacho v. Estate of Gumataotao, 2010 Guam 1 ¶ 19 (citing Rose v. State, 123 P.2d 505, 512
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 15 of 36
(Cal. 1942)). The specific enumerated quarantine powers granted to the Governor in § 1421g(a)
control over a general grant of power to the Legislature in § 1423a. Thus, we are persuaded by
the Governor’s argument that “subject to the laws of Guam” in § 1421g(a) cannot be read as
ordinary separation of powers principles because doing so renders the phrase surplusage.
Accordingly, the Legislature may not enact laws in derogation of the Governor’s quarantine
authority in § 1421g(a). See In re Request of Governor Camacho I, 2003 Guam 16 ¶ 15 n.5.
2. History of the Organic Act
[28] To interpret § 1421g(a) and the grant of executive power it contains, we must look back
further than the 1986 amendments to the Organic Act to the evolution of self-governance in
Guam since becoming an unincorporated territory of the United States, which it remains to this
day. See 48 U.S.C.A. § 1421a.
[29] The United States gained possession of Guam in 1898 from Spain by the Treaty of Peace
Between the United States of America and the Kingdom of Spain (“Treaty of Paris”). Treaty of
Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754 (1899). The United States then installed a
government controlled by the Navy and appointed a Naval governor as the head of government.
See In re Request of Governor Felix P. Camacho Relative to the Interpretation & Application of
Sections 6 & 9 of the Organic Act of Guam (“In re Request of Governor Camacho II”), 2004
Guam 10 ¶¶ 19, 21 (citing Arnold H. Leibowitz, Defining Status: A Comprehensive Analysis of
United States Territorial Relations 316-18 (1989); Paul Carano & Pedro C. Sanchez, A Complete
History of Guam 347 (1964)).
[30] In 1917, the Guam Congress was created to make recommendations to the Naval
governor. See id. ¶ 20. In reality, however, the Naval governor “retained virtually all power
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 16 of 36
regarding the administration of Guam.” Id. ¶ 21 (citing Stanley K. Laughlin, Jr., The Law of
United States Territories and Affiliated Jurisdictions 403 (1995); Carano & Sanchez, supra, at
229). In 1947, after the United States recaptured Guam following Japanese occupation in World
War II, Acting Secretary of the Navy John L. Sullivan issued a proclamation directing that only
the Guam Congress could change existing law, implicitly rejecting unilateral amendment through
executive order by the Naval governor. Id. ¶¶ 19, 22 (citing Carano & Sanchez, supra, at 347).
This proclamation “was the first substantive grant of power to non-appointed, non-naval
officials.” Id. ¶ 22.
[31] The shift away from Naval governance toward civil governance continued when
President Harry S. Truman transferred administration of Guam to the Department of the Interior
and appointed the first civilian governor in 1949. Id. ¶ 23 (citing Carano & Sanchez, supra, at
353, 355). A year later, “a civil government in Guam became a reality, when the passage of the
Organic Act of Guam created three branches of government.” Id. ¶ 24. From the time when the
United States gained possession of Guam in 1898 and until passage of the Organic Act in 1950,
the political status of Guam was atypical “with a military governor holding all legislative,
executive, and judicial authority.” Jon M. Van Dyke, The Evolving Legal Relationships Between
the United States and Its Affiliated U.S.-Flag Islands, 14 U. Haw. L. Rev. 445, 488 (1992).
[32] “Under the Organic Act, the position of the civilian Governor mirrored its predecessor
under the United States Navy and was given broad powers.” In re Request of Governor
Camacho II, 2004 Guam 10 ¶ 25. Despite the passage of the Organic Act, the governor of Guam
continued to be appointed by the President of the United States. Id. ¶ 27. “Not until 1968 did
the people of Guam exercise their voices in choosing the executive leaders of their island.” Id. ¶
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 17 of 36
28 (citing Guam Elective Governor Act, Pub. L. 90-497 (1968)). The elected governor
continued to enjoy broad executive powers. See id. ¶ 29. In 1998, the Organic Act was amended
to clarify legislative power. See Pub. L. 105-291, 105th Cong., § 4 (1998) (enacted and codified
at 48 U.S.C.A. §§ 1421g, 1423a).
[33] It is against this historical backdrop we recognize the governor’s executive power in 48
U.S.C.A. § 1421g(a). This section of the Organic Act—which specifically mandates the
governor establish, maintain, and operate quarantine stations and promulgate quarantine
regulations, when necessary—has never been amended. Section 1421g(a) was enacted when the
power of the legislature and judiciary were not as robust as the present day, and the appointed
governor enjoyed more power than at present. The parties do not dispute this is a unique grant of
power specifically bestowed on the governor of Guam. But it is more than unique; it is a
“command of the Organic Act” of “ultimate responsibility” to the governor. Bordallo v.
Baldwin, 624 F.2d 932, 934 (9th Cir. 1980).
3. Ninth Circuit Jurisprudence
[34] “The Organic Act serves the function of a constitution for Guam.” Haeuser v. Dep’t of
L., Gov’t of Guam, 97 F.3d 1152, 1156 (9th Cir. 1996). “In general, it provides for the three
branches of government consistent with the constitutional structure of the United States and the
powers of each branch flow from, and are limited by the Organic Act.” Baldwin, 624 F.2d at
934. The Organic Act not only serves as the constitution of Guam, it is also a federal statute.
“Ninth Circuit cases that address Organic Act issues will be followed by this court, insofar as
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 18 of 36
such cases are reasonably supported by law.”2 Underwood v. Guam Election Comm’n, 2006
Guam 17 ¶ 35. As the Ninth Circuit’s decision in Bordallo v. Baldwin, 624 F.2d 932 (9th Cir.
1980)—interpreting the governor’s power under § 1421g(a)—is reasonably supported by law,
and no party has argued why it should not be followed, we will follow Baldwin’s interpretation
of that section.
[35] The Governor’s power under § 1421g(a) is:
Subject to the laws of Guam, the Governor shall establish, maintain, and operate
public-health services in Guam, including hospitals, dispensaries, and quarantine
stations, at such places in Guam as may be necessary, and [s]he shall promulgate
quarantine and sanitary regulations for the protection of Guam against the
importation and spread of disease.
48 U.S.C.A. § 1421g(a).
[36] In Baldwin, the legislative enactment challenged as violating separation of powers
principles effectively eliminated all discretion over appointments to the Guam Memorial
Hospital’s Board of Trustees by the governor and required the governor to appoint persons
designated by private organizations. 624 F.2d at 933. There, the legislature argued the law was
organic because the governor’s “general appointive powers as set forth in Section 1422c(a)”
were subject to legislative action and the governor’s “specific responsibility with respect to
hospitals is restricted by the inclusion in Section 1421g(a) of the phrase ‘subject to the laws of
Guam.’” Id. at 934. But the legislature “failed to recognize that legislative power is limited by
2
As we explained in Underwood:
[B]ecause the Supreme Court of Guam is now the final arbiter of questions arising through the
jurisdiction of the courts of Guam (short of final certiorari review by the United States Supreme
Court), we recognize our authority to depart from Ninth Circuit cases interpreting the Organic Act
of Guam only in the rare instance where we believe that such cases are unsupported by law.
2006 Guam 17 ¶ 35.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 19 of 36
Section 1423a to subjects ‘not inconsistent with the provisions of this chapter.’” Id. The Ninth
Circuit held the law violated separation of powers principles by “tak[ing] over the entire power
to establish, maintain and operate the Hospital by dictating who the governing trustees shall be.”
Id. The legislature “negate[d] the command of the Organic Act that the ultimate responsibility
for the governance of the Hospital be in the Governor.” Id.[37] Here, the Governor argues she has more power over quarantine than over hospitals
because § 1421g(a) mandates she promulgate quarantine regulations together with her duties to
establish, maintain, and operate quarantine stations and hospitals. We agree. The Governor’s
power over quarantine is broader than her power over hospitals. See Baldwin, 624 F.2d at 933-
34.
[38] Aside from Baldwin, the Ninth Circuit has interpreted § 1421g(b) and the governor’s
Organic Act powers over public education. In Brown v. Civil Service Commission, the Ninth
Circuit interpreted the savings clause “subject to the laws of Guam” in § 1421g(a) to apply to §
1421g(b), dismissing the argument that the governor had “exclusive” power over the school
system. 818 F.2d 706, 709 (9th Cir. 1987). Here, the Legislature argues the determination in
Brown applies to the Governor’s quarantine power in § 1421g(a) and urges us to find that the
Governor’s quarantine power is subject to concurrent legislative authority. Legislature’s Br. at
13-14. But even without determining that the governor’s power over public education was
nonexclusive, the Ninth Circuit could have reached the same result—that the disputed executive
action in Brown infringed on the legislature’s Organic Act power because § 1421g(b) grants the
governor general authority over public education. See Brown, 818 F.2d at 709-10.
Contrastingly, the legislature has a specific grant of authority to establish a merit system for
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 20 of 36
government service, and in Brown, the governor negated the Organic Act’s specific grant of
authority to the legislature by establishing a merit system for Department of Education
employees. Id.[39] The Ninth Circuit concluded the same in Nelson v. Ada, 878 F.2d 277, 280 (9th Cir.
1989) (“In Brown, . . . the Organic Act of Guam itself authorized the Guam legislation in
question.”). There, the Ninth Circuit stated, “48 U.S.C. § 1422c(a) provided expressly for
legislative establishment of a merit system under which, ‘as far as practicable,’ appointments and
promotions were to be made.” Id. (citing Brown, 818 F.2d at 709-10). These three Ninth Circuit
cases stand for the proposition that in separation of powers conflicts, the government actor with
the more specific grant of power in the Organic Act prevails over the actor with a general grant
of power. Here, as between the Legislature and the Governor, the Governor has the more
specific grant of power over quarantine in the Organic Act. Thus, Ninth Circuit precedent
supports interpreting the separation of powers dynamic over quarantine as weighted toward the
Governor. Besides Ninth Circuit precedent, the plain language of § 1421g(a) and the history of
the Organic Act also support the determination that the Governor’s quarantine policies, rules,
and regulations take precedence over legislative enactments of quarantine law.3
4. The Perez Test
[40] Because of her authority under 48 U.S.C.A. § 1421g(a), the Governor argues that sections
19604 and 19605 of the EHPA are inorganic and void for violating separation of powers. The
Governor contends these sections encroach on her Organic Act power over quarantine by
3
The Governor’s executive orders, policies, rules, and regulations on quarantine are subject to the
Constitution and Jacobson limitations. See infra Part IV.B (discussing standard of review for constitutional
challenges).
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 21 of 36
dictating quarantine rules and policy. To resolve this issue, we analyze sections 19604 and
19605 in turn under the two-part test adopted in People v. Perez, 1999 Guam 2. First, “whether
the statutory provision prevents the accomplishment of constitutional functions,” and second, “if
so, whether the disruptive impact is justified by any overriding constitutional need.” Perez, 1999
Guam 2 ¶ 17.
a. Section 19604 does not prevent the Governor from accomplishing her
constitutional functions
[41] Section 19604 is titled “Isolation and Quarantine.” 10 GCA § 19604. This section
authorizes DPHSS to isolate or quarantine an individual or groups of individuals, set rules, and
issue orders. Id. § 19604(a). This section also sets out eight conditions and principles the public
health authority must follow when isolating or quarantining individuals or groups. Id. §
19604(b).
[42] When viewed as general principles for DPHSS to follow when isolating or quarantining
individuals, section 19604 does not impinge on the Governor’s quarantine duties in § 1421g(a).
Section 19604 describes quarantine and quarantine-related principles but does not establish or
define procedures or methods to accomplish those goals. Put differently, section 19604 does not
generate the quarantine policy itself. The Legislature is not mandating or issuing directives to
DPHSS or the Governor to implement. Rather, the Legislature presents a guide for DPHSS to
use when creating specific quarantine policies. Unlike in Baldwin, the Legislature has not “taken
over the entire power” to establish, maintain, and operate quarantine stations and promulgate
quarantine regulations. See 624 F.2d at 934-35.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 22 of 36
[43] The Attorney General as amicus curiae suggests that section 19604 is organic when read
as intelligible principles—as standards that guide DPHSS rather than quarantine regulations
themselves. And the Governor conceded during oral argument that section 19604 would be
organic when read as broad standards. See Oral Argument at 10:25:21–10:25:39, 12:05:08–
12:06:28 (May 7, 2021). As the U.S. Supreme Court recognized, there is a long standing
principle of statutory construction that “an Act of Congress ought not to be construed to violate
the Constitution if any other possible construction remains available.” NLRB v. Cath. Bishop of
Chi., 440 U.S. 490, 500 (1979); see also Gilmore v. California, 220 F.3d 987, 997-98 (9th Cir.
2000). When read as broad, general principles, section 19604 does not prevent the Governor
from accomplishing her quarantine duties mandated by the Organic Act. Because we answer the
first step of the Perez test in the negative, we need not continue to the second step of the
analysis. We now turn to the certified question asking how section 19604 is reconciled with the
quarantine powers granted to the Governor in the Organic Act. Our answer is that by
interpreting section 19604 as broad standards and general principles, the law does not
impermissibly encroach on the Governor’s quarantine authority. The Legislature, therefore, has
not exceeded its power, and section 19604 does not violate separation of powers.
[44] Because we interpret section 19604 as broad standards and general principles, section
19604 does not permit statutory challenges to quarantine orders because it contains no
substantive regulations, nor does it confer legal rights to individuals subject to quarantine.
Section 19604 is not intended to be used by courts as DPHSS criteria for quarantine when
reviewing challenges to individual quarantine orders.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 23 of 36
b. Section 19605 prevents the Governor from accomplishing her
constitutional functions
[45] Section 19605 is titled “Procedures for Isolation and Quarantine.” 10 GCA § 19605.
This section sets out procedures the public health authority must follow when isolating or
quarantining individuals or groups. Id. The interested parties and amicus curiae extensively
briefed the following subsections for organicity: (1) section 19605(a)(4) (requiring that the
public health authority obtain a court order for isolation or quarantine beyond ten days for those
quarantined without notice); (2) section 19605(b)(5) (setting standards for a court to apply when
considering a petition for isolation or quarantine); (3) section 19605(b)(5)(ii) (setting
requirements for the court order authorizing isolation or quarantine); and (4) section 19605(c)(1)-
(2) (authorizing procedures for release or remedies for breaches under the EHPA).
[46] Unlike the general language used in section 19604 to ascribe broad principles for
quarantine and isolation, section 19605 directs DPHSS to follow specific procedures to lawfully
isolate or quarantine individuals.
[47] For example, after ten days of isolation or quarantine, DPHSS can continue to isolate or
quarantine an individual without notice only by petition to the Superior Court. 10 GCA §
19605(a)(4). In enacting this requirement, the Legislature has predetermined the length of an
initial quarantine. This legislative determination infringes on the power of the executive to
execute quarantine regulations by mandating that DPHSS obtain a court order to keep an
individual in quarantine past the ten-day period. The EHPA is a general statute and not specific
to COVID-19, but the ongoing endorsement of the Centers for Disease Control and Prevention
for a fourteen-day quarantine period highlights the legislative interference created by the ten-day
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 24 of 36
limit. See Req. Declaratory J. at Ex. 5 (When to Quarantine, Centers for Disease Control and
Prevention, Dec. 10, 2020); see also When to Quarantine, Centers for Disease Control and
Prevention (Mar. 12, 2021), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-
sick/quarantine.html (last visited June 29, 2021). To comply with the EHPA, DPHSS must
petition a court for an order to quarantine every incoming traveler beyond ten days. This
provision removes essential decision-making power from DPHSS, and thereby the Governor,
over the length of quarantine during the COVID-19 pandemic.
[48] Another example of infringement is that the court order for quarantine must “include any
conditions necessary to ensure that isolation or quarantine is carried out within the stated
purposes and restrictions of this Chapter.” 10 GCA § 19605(b)(5)(ii)(cc). The Legislature
mandates the Superior Court to enact the Legislature’s quarantine policies contained within the
statute and ensure DPHSS’s petition complies should the two conflict. Put differently, the
Superior Court must enforce the Legislature’s quarantine determinations over those of DPHSS.
This is legislative overreach into policy decisions over quarantine regulation that the Organic Act
specifically grants to the Governor and thereby DPHSS.
[49] The Attorney General as amicus curiae suggests section 19605 creates procedures for
judicial review but is not a substantive regulatory provision. Att’y Gen.’s Br. at 21 (Apr. 6,
2021). We are not persuaded that section 19605 is limited to mere procedure. Section 19605
creates three substantive rights. First, the right of quarantined individuals to petition the Superior
Court for release. 10 GCA § 19605(c)(1). Second, remedies for quarantined individuals for
breach of quarantine conditions. 10 GCA § 19605(c)(2). And third, it provides unrepresented
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 25 of 36
individuals with legal counsel. 10 GCA § 19605(e)(1). This is not to say that these subsections
are unimportant to protect civil liberties—only that they are more substantive than procedural.
[50] As in Baldwin, the Governor has a specific Organic Act responsibility to establish,
maintain, and operate quarantine stations and the added responsibility to promulgate quarantine
regulations. See 48 U.S.C.A. § 1421g(a). The Legislature does not have a specific grant of
authority over quarantine law but has a general police power limited to “subjects of legislation
not inconsistent with the provisions of [the Organic Act].” Id. § 1423a. While Baldwin
recognizes that the legislature can, within the scope of its own Organic Act authority, enact
quarantine law, those enactments cannot overrule the governor’s regulations. See 624 F.2d at
934. Section 19605, like the challenged law in Baldwin, negates the command of the Organic
Act that quarantine authority ultimately vests in the Governor. Section 19605 intrudes too far
into the Governor’s power to operate quarantine stations and regulate quarantine by dictating
substantive quarantine decisions. Section 19605 effectively substitutes the Legislature’s policies
for the Governor’s and empowers the courts to do the same. This is impermissible infringement
because the plain language of the Organic Act, the history of the Organic Act and the powers of
the Governor, and Ninth Circuit precedent all support the Governor’s position that her quarantine
policies must take precedence over the Legislature’s. Section 19605 therefore prevents the
Governor from accomplishing her Organic Act responsibilities over quarantine.
c. The disruptive impact of section 19605 is not justified by any overriding
constitutional need
[51] Because section 19605 prevents the Governor from accomplishing her constitutional
functions, we now turn to the second step of the Perez test to determine whether the disruptive
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 26 of 36
impact of the law is justified by any overriding constitutional need. See Perez, 1999 Guam 2 ¶
17. We have performed the “overriding constitutional need” analysis twice before. In
Villagomez-Palisson v. Superior Court (Laguana), 2004 Guam 13, this court held the Mandatory
Medical Malpractice Arbitration Act does not violate the separation of powers doctrine because
the overriding constitutional need for affordable health care justified “minimal infringement on
the power of the judiciary to review the arbitrator’s award.” 2004 Guam 13 ¶¶ 31, 34. By
contrast, we determined that Appendix C of the government of Guam’s budget for fiscal year
2002 contained in Guam Public Law 26-35 violated the separation of powers doctrine because it
prevented the governor from accomplishing his Organic Act appropriation duties, and the
legislature did not articulate an “overriding constitutional need” to usurp that power. In re
Request of Governor Gutierrez II, 2002 Guam 1 ¶¶ 2, 50.
[52] The circumstances here are not analogous to those in Villagomez-Palisson because the
disruptive impact created by section 19605 is not minimal. See supra Part IV.A.4.ii. And here,
like in In re Request of Governor Gutierrez II, the legislature does not articulate any overriding
constitutional need to justify the infringement created by section 19605.
[53] The primary goal of the EPHA is to protect the health and safety of Guam during a public
health emergency. See 10 GCA § 19102. The EPHA lists ten legislative findings; eight of those
findings focus on the government’s response to public health threats and exercising emergency
health powers. See id. Of the EHPA’s seven listed purposes, six describe government actions to
control serious health threats. See id. § 19103. While the EHPA also attempts to balance
individual liberties with the “ability to respond, rapidly and effectively, to potential or actual
public health emergencies,” the EHPA is primarily a tool to combat dangers to public health. Id.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 27 of 36
§ 19102(e); see also id. § 19103(f) (stating a purpose of EHPA is “to ensure the needs of infected
or exposed persons are properly addressed to the fullest extent possible, given the primary goal
of controlling serious health threats” (emphasis added)).
[54] The legislative history of the EHPA also supports this interpretation. The EHPA was
passed into law in 2003. Guam Pub. L. 26-173 (Jan. 5, 2003) (codified at 10 GCA § 19101 et
seq.). The act was passed to empower the government to respond to the spread of communicable
diseases by conferring specific emergency powers to the governor and the public health
authority. Id. § 1. The legislative intent of the EHPA states that if emergency powers are
exercised, “the civil rights, liberties and needs of infected or exposed persons will be protected to
the fullest extent possible, consistent with the primary goal of controlling serious health threats.”
Id. (emphasis added). The legislative history reiterates the primary goal of the EPHA is to
protect Guam against public health threats, while a lesser goal is to protect individual rights and
liberties. Furthermore, voiding section 19605 does not shut the doors of the courthouse to
aggrieved quarantined individuals. Quarantined individuals can challenge a quarantine order
under constitutional claims, by writ of habeas corpus, or under the theory that agency regulations
or decisions are arbitrary, capricious, or an abuse of discretion. See infra Part IV.B (discussing
constitutional challenges); infra Part IV.C (discussing court’s inherent power of review). Thus,
the Legislature has not articulated an overriding constitutional need to usurp and infringe on the
Governor’s quarantine authority under § 1421g(a).
[55] Because the Legislature has not articulated an overriding constitutional need, we answer
the certified question of whether section 19605 can be reconciled with the quarantine powers
granted to the Governor in the Organic Act in the negative—it cannot be reconciled. The
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 28 of 36
Legislature has exceeded its power, and section 19605 is inorganic and void. Accordingly, the
second part of the certified question is answered in the negative—individuals cannot challenge
their quarantine orders under section 19605.
[56] In summary, we hold section 19604 does not violate separation of powers doctrine.
Because section 19604 contains only broad principles, it is not a basis for a statutory challenge to
a quarantine order. Section 19605 is not a basis for statutory challenges to a quarantine order
because it is inorganic and void for violating separation of powers doctrine.
B. Quarantine Orders May Be Challenged on Constitutional Grounds
[57] We now turn to the first of two questions we initially certified: May quarantine orders be
challenged on constitutional grounds? If yes, what level of scrutiny should be applied to the
court’s review, whether rational, intermediate, or strict?
[58] The majority of the courts, when faced with challenges to executive emergency health
measures implemented in response to the COVID-19 pandemic, apply the framework established
by the United States Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11, 25-27, 31
(1905). See Carmichael v. Ige, 470 F. Supp. 3d 1133, 1142 (D. Haw. 2020) (collecting cases);
Page v. Cuomo, 478 F. Supp. 3d 355, 366 (N.D.N.Y. 2020) (“As relevant here, courts across the
country have nearly uniformly relied on Jacobson’s framework to analyze emergency public
health measures put in place to curb the spread of coronavirus.”); Prof’l Beauty Fed’n of Cal. v.
Newsom, Case No. 2:20-cv-04275-RGK-AS, 2020 WL 3056126, at *5 (C.D. Cal. June 8, 2020)
(collecting cases). The standard in Jacobson is that challenges to public health policy statutes
and regulations fail unless the policy can be shown to have no real or substantial relation to
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 29 of 36
public health or constitutes a plain, palpable invasion of plaintiff’s rights. Jacobson, 197 U.S. at
31.
[59] But when “the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they
must satisfy ‘strict scrutiny,’ and this means they must be ‘narrowly tailored’ to serve a
‘compelling’ state interest.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67
(2020) (quoting Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993)).
“In cases implicating this form of ‘strict scrutiny,’ courts nearly always face an individual’s
claim of constitutional right pitted against the government’s claim of special expertise in a matter
of high importance involving public health or safety.” S. Bay United Pentecostal Church v.
Newsom, 141 S. Ct. 716, 718 (Mem.) (2021). “Stemming the spread of COVID–19 is
unquestionably a compelling interest,” but to pass constitutional strict scrutiny, the challenged
regulation must also be “narrowly tailored.” Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 67.
[60] As the global COVID-19 pandemic stretches well beyond the one-year mark, the
Supreme Court has recognized that the degree of deference to the executive branch’s regulations
aimed at slowing the transmission of the novel coronavirus may shift as time passes and more is
known about the disease. See id. at 70 (Gorsuch, J., concurring); Calvary Chapel Dayton Valley
v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (Mem.) (Alito, J., dissenting). In his concurrence in
Roman Catholic Diocese of Brooklyn, Justice Gorsuch takes aim at Chief Justice Robert’s oft-
cited concurrence in South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (Mem.)
(2021), where the Chief Justice quoted Jacobson to justify broad deference to the decisions of
elected public health officials. See Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch,
J., concurring). Justice Gorsuch uses the passage of time, in part, to distinguish between
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 30 of 36
upholding the challenged regulation in South Bay United Pentecostal Church in March 2020 and
enjoining the challenged regulation in Roman Catholic Diocese of Brooklyn in November 2020:
At that time, [when the concurrence in South Bay United Pentecostal Church was
issued,] COVID had been with us, in earnest, for just three months. Now, as we
round out 2020 and face the prospect of entering a second calendar year living in
the pandemic’s shadow, that rationale has expired according to its own terms.
Even if the Constitution has taken a holiday during this pandemic, it cannot
become a sabbatical.
Id.4
[61] Four months earlier, Justice Alito had the same concern, stating: “[A]t the outset of an
emergency, it may be appropriate for courts to tolerate very blunt rules. . . . [But] [a]s more
medical and scientific evidence becomes available, and as States have time to craft policies in
light of that evidence, courts should expect policies that more carefully account for constitutional
rights.” Calvary Chapel Dayton Valley, 140 S. Ct. at 2605 (Mem.) (Alito, J., dissenting).
[62] This is the status of Supreme Court jurisprudence about Jacobson deference and its
continued application. As these rules apply to constitutional challenges to the Governor’s
executive orders and regulations over quarantine including quarantine orders issued by DPHSS,
we answer the certified question in the affirmative—quarantine orders may be challenged on
constitutional grounds. Constitutional challenges to neutral and generally applicable laws and
regulations to protect public health are analyzed under the Jacobson standard. If the challenged
law or regulation is not neutral or generally applicable, it is subject to strict scrutiny.
4
The Superior Court’s analysis of Jacobson deference recognized this shift toward more probing inquiry of
executive regulations as time and knowledge increase. See Ikei, SP0138-20/SP0141-20 (Finds. Fact & Concl. L. at
13-15).
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 31 of 36
C. The Court Has Inherent Power to Review Agency Action
[63] We now turn to the final certified question: May a court modify a quarantine order issued
by DPHSS? If yes, under what circumstances? If yes, does such modification impinge on the
Governor’s powers and duties to quarantine and protect against the spread of disease and
interfere with operations of the Executive Branch?
[64] The Organic Act delineates the jurisdiction and powers of the Judiciary of Guam under
48 U.S.C.A. § 1424-1. The Superior Court of Guam “shall have such original and appellate
jurisdiction over all causes in Guam as the laws of Guam provide” except jurisdiction conferred
to the District Court of Guam. 48 U.S.C.A. § 1424-1(d). The Supreme Court of Guam is the
highest court and has general appellate jurisdiction, specific original jurisdiction, and supervisory
jurisdiction. Id. § 1424-1(a)(1)-(7). The Supreme Court also has “jurisdiction to issue all orders
and writs in aid of its appellate, supervisory, and original jurisdiction.” Id. § 1424-1(a)(3).
Because the Organic Act entrusts the protection of people’s rights to the judiciary, it has the
distinct role of interpreting the law. See Marbury v. Madison, 5 U.S. 137, 177 (1803).
[65] The courts of Guam also have the common law power to review agency actions.
Gutierrez v. Guam Election Comm’n, 2011 Guam 3 ¶ 18 (“[W]e are able to review the action in
the instant case under our common law authority to review agency actions.”). This court adopted
“the common law position exemplified by Bodinson Manufacturing, that all of Guam’s courts
retain the general ability to review agency actions taken by agencies and to ‘annul or restrain
administrative action already taken which is in violation of law’ when such is appropriate.” Id. ¶
19 (quoting Bodinson Mfg. Co. v. Cal. Emp. Comm’n, 109 P.2d 935, 941 (Cal. 1941)). The
power is rooted in the court’s jurisdiction and authority to issue writs, see Bodinson Mfg., 109
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 32 of 36
P.2d at 941, which are granted to both the Superior Court and the Supreme Court of Guam, see
48 U.S.C.A. § 1424-1(a)(3), (d); see also 7 GCA § 31401 (2005). Thus, the Superior Court and
the Supreme Court have the common law power to review agency actions and annul or restrain
any agency action in violation of the law.
[66] Other jurisdictions refer to the court’s “inherent” power or authority to review
administrative decisions for arbitrariness or capriciousness. See Truitt v. Bd. of Pub. Works, 221
A.2d 370, 380 (Md. 1966) (“This Court has consistently exercised its inherent power to review
actions of administrative agencies alleged to be arbitrary or capricious even if there is no express
statutory authority for such review.”); Residents Opposed to Kittitas Turbines v. State Energy
Facility Site Evaluation Council (EFSEC), 197 P.3d 1153, 1163 (Wash. 2008) (en banc) (“While
the constitution does not expressly provide for appellate jurisdiction of agency action in superior
court, this court has recognized that the superior courts have inherent authority to review
administrative decisions for arbitrary and capricious action under the discretionary writ of
certiorari.”); In re Wright, 46 S.E.2d 696, 698 (N.C. 1948) (“The court has inherent authority to
review the discretionary action of any administrative agency, whenever such action affects
personal or property rights, upon a prima facie showing, by petition for a writ of certiorari, that
such agency has acted arbitrarily, capriciously, or in disregard of law.”).
[67] Given the specific grant of power and authority to the Governor in the Organic Act, her
quarantine policies and those implemented by DPHSS, as the Public Health Authority through
the EHPA, are afforded deference. Most courts across the county recognize that in times of
public health emergencies, the judgments of politically accountable officials are granted
deference. See Marshall v. United States, 414 U.S. 417, 427 (1974) (stating that when those
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 33 of 36
officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their
latitude “must be especially broad”); see also Bayley’s Campground Inc. v. Mills, 463 F. Supp.
3d 22, 32 (D. Me. 2020), recons. denied, No. 2:20-cv-00176-LEW, 2020 WL 3037252 (D. Me.
June 5, 2020), and aff’d, 985 F.3d 153 (1st Cir. 2021) (“[W]hen one weighs competing interests
in the balance, the presence of a major public health crises is a very heavy weight indeed and
scientific uncertainties about the best response will afford the state some additional leeway to err
on the side of caution . . . .”); Carmichael, 470 F. Supp. 3d at 1143 (“[T]he judiciary may not
‘second-guess the state’s policy choices in crafting emergency public health measures.’”
(quoting In re Rutledge, 956 F.3d 1018, 1029 (8th Cir. 2020))); Chambless Enters., LLC v.
Redfield, --- F. Supp. 3d ---, Civil Action No. 3:20-cv-01455, 2020 WL 7588849, at *15 (W.D.
La. Dec. 22, 2020) (collecting cases).
[68] The courts have their role to play in our system of checks and balances even during a
public health crisis. “As the Supreme Court also stated in Jacobson, courts have the authority to
intervene when political leaders attempting to protect the public against an epidemic act in ‘an
arbitrary, unreasonable manner’ or in a way that goes ‘far beyond what [is] reasonably
necessary.’” Elkhorn Baptist Church v. Brown, 466 P.3d 30, 35 (Or. 2020) (quoting Jacobson,
197 U.S. at 28). The Constitution “entrusts the protection of the people’s rights to the Judiciary .
. . . Deference, though broad, has its limits.” S. Bay United Pentecostal Church, 141 S. Ct. at
717 (Roberts, C.J., concurring).
[69] Based on these principles, the jurisdiction and authority to issue writs provide the courts
with inherent power to review agency regulations and agency decisions for arbitrariness,
capriciousness, or abuse of discretion. We hold that even without a statutory cause of action
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 34 of 36
within the EHPA, the courts of Guam have the inherent common law power to review the agency
actions of DPHSS acting as the Public Health Authority.
[70] The Governor’s Organic Act power and authority over quarantine are broad, but not
absolute. The Governor conceded in oral argument that her interpretation of her Organic Act
powers over quarantine does not place her actions above the law or beyond the reach of the
courts. See Oral Argument at 10:41:08–10:41:20, 12:07:01–12:07:20 (May 7, 2021). Her
concession is apt. Section 1421g(a) begins with the phrase “subject to the laws of Guam.” 48
U.S.C.A. § 1421g(a). And because “[a] statute should be construed to give effect to all of its
provisions so that no part would be superfluous or insignificant,” Macris v. Richardson, 2010
Guam 6 ¶ 15, the judicial branch must ensure other branches of government do not act beyond
the law. See also Washington Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16 (1879) (“We are not at
liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule
of statutory construction that significance and effect shall, if possible, be accorded to every
word.”).
[71] The courts have inherent power to review quarantine regulations and orders issued by
DPHSS for arbitrariness, capriciousness, or abuse of discretion. This standard of review reflects
the deference to elected officials and the specific grant in the Organic Act to promulgate
quarantine regulations in times of public health crises and does not encroach on the Governor’s
Organic Act duties.
[72] The court’s power to review and order compliance with the law is not a “modification” of
a DPHSS order because the court is not revising or editing a DPHSS order or substituting its
policy decisions into a DPHSS order. The exercise of the court’s inherent power of review over
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 35 of 36
agency actions is a judicial function and does not itself generate policy or regulations. Judicial
review over the actions of DPHSS therefore does not impinge on the Governor’s powers and
duties under 48 U.S.C.A. § 1421g(a). See Marbury, 5 U.S. at 177.
V. CONCLUSION
[73] In the midst of the global COVID-19 pandemic, the Governor filed a Request for
Declaratory Judgment to interpret her quarantine powers in the Organic Act relative to the scope
of judicial review over statutory challenges to quarantine arguably contained within the EHPA.
After diligent and extensive briefing and vigorous advocacy on behalf of the Governor, PDSC,
DPHSS, the Legislature, and the Attorney General of Guam, we answer the certified questions as
follows:
[74] Section 19604 does not violate separation of powers doctrine and is a valid exercise of
legislative power. Section 19605 is inorganic and void because it violates separation of powers
doctrine by encroaching on the Governor’s Organic Act authority over quarantine under 48
U.S.C.A. § 1421g(a). There are no explicit statutory challenges to quarantine orders in the
EHPA because section 19604 does not create a substantive right. Rather, section 19604 is a set
of broad principles enacted to guide the Governor and DPHSS in promulgating quarantine policy
and regulation.
[75] Quarantine orders may be challenged on constitutional grounds. Neutral and generally
applicable laws and regulations to protect public health are analyzed under the Jacobson
standard. If a challenged law or regulation is not neutral or generally applicable, it is subject to
strict scrutiny.
In re: Request of Lourdes A. Leon Guerrero, I Maga’hågan Guåhan,
Relative to the Power of the Executive Branch to Establish, Maintain,
and Operate Quarantine Facilities in Guam and to Promulgate
Quarantine and Sanitation Regulations for the Protection of Guam
Against the Importation and Spread of Disease, 2021 Guam 6, Opinion Page 36 of 36
[76] Our courts have the inherent power to review agency actions and order compliance with
the law. Exercising this power does not “modify” a DPHSS quarantine order and does not
encroach on the Governor’s powers and duties under 48 U.S.C.A. § 1421g(a).
/s/ /s/
ROBERT J. TORRES KATHERINE A. MARAMAN
Associate Justice Associate Justice
/s/
F. PHILIP CARBULLIDO
Chief Justice