Reply Brief — Limtiaco v. Camacho

No. 06-116

Supreme Court of the United States

DOUGLAS B. MOYLAN,

ATTORNEY GENERAL OF GUAM,

Petitioner,

v.

FELIX P. CAMACHO,

GOVERNOR OF GUAM,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GUAM

REPLY BRIEF FOR PETITIONER

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. Moss

JONATHAN G. CEDARBAUM

KELLY THOMPSON COCHRAN

WILMER CUTLER PICKERING

HALE AND DORR LLP :

1875 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 663-6000

TABLE OF CONTENTS

Page

es RF CE ecictteecnsiticenttcnectnnsmemncnseevtinnel il

I. THE PETITION FoR A WRIT OF CERTIORARI

FROM THIS COURT WAS TIMELY.......0.-.......-ceccscecesesceneeseee 1

A. The Considerations Driving The Timeli-

ness Decisions Cited By Respondent Are

Be re CNN icc oereentsassteingestiliichrasanctnisingnasinizcens 1

B. Respondent’s Proposed Alternative Routes

To Review By This Court Are Impractical................ 6

C. Petitioner’s Filings In Other Cases Are

Consistent With His Position Here......................... 9

Il. THE GUAM SUPREME COURT'S INTERPRETA-

TION OF THE ORGANIC ACT’S DEBT LIMIT IS

TESTES ESE SET NAS a ar a, SI RR 10

A. The Guam Supreme Court’s Interpretation

Is Contrary To The a Act’s Text

i scaittisectnicitneencniinndidadidutiidtepaanigniions 10

B. The Guam Supreme Court’s Decision Is

Not Entitled To Deference....................-cssescssseesssenees 17

CONCLUSION ..... icsiniandsbieieileiniiaiagans 20

(i)

TABLE OF AUTHORITIES

Page(s)

American Farm Lines v. Black Ball Freight Ser-

vice, 397 U.S. 532 (1970) 7

Andrews v. Virginian Railway Co., 248 U.S. 272

(1919) 7

Beecham v. United States, 511 U.S. 368 (1994).................... 11

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) 5

Board of Education v. Passey, 246 P.2d 1078 (Utah

1952) 10,15

Bruner v. United States, 343 U.S. 112 (1952) ahi “

Campose v. Central Cambalache, Inc., 157 F 2d 43

(1st Cir. 1946) 18

Civil Aeronautics Board v. Delta Air Lines, Inc.,

367 U.S. 316 (1961) 7

Crown Coat Front Co. v. United States, 386 US.

503 (1967) 7

De Castro v. Board of Commissioners, 322 U.S. 451

(1944)... 18

Donovan v. Richland County Ass'n for Retarded

Citizens, 454 U.S. 389 (1982) 8

Downes v. Budwell, 18 U.S. 244 (1901) 14

E. Ingraham Co. v. Town & City of Bristol, 132

A.2d 563 (Conn. 1957) 15

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1987)..............19

Gioda v. Saipan Stevedoring Co., 885 F 2d 625 (9th

Cir. 1988) 5

Gutierrez v. Pangelonan, 276 F.3d 539 (9th Cir.

2002) 18

Hall v. C & P Telephone Co., 793 F.2d 1354 (D.C.

Cir. 1986) 19

Halsey & Co. v. City of Belle Plaine, 104 N.W. 494

(lowa 1905) 10

Hansen v. City of Hoquiam, 163 P. 391 (Wash.

1917) 10

ICC v. Brotherhood of Locomotive Engineers, 482

U.S. 270 (1987) 7

TABLE OF AUTHORITIES—Continued

Page(s)

Isenberg v. Sherman, 7 P.2d 1006 (Cal.), cert. de-

nied, 286 U.S. 547 (1932)........... ood

Jama v. Immigr :tion & Customs Enforcement, 543

ee iertaibesintiacincticsipiinetsticitatsntivniglidhististineasmcscitias 11

Louisville & Nashville Railroad Co. v. Coulter, 131

F. 282 (E.D. Ky. 1903), rev'd on other grounds,

FREER SIRS Ee AN ees 15

Market Street Railway Co. v. Railroad Commis-

sion, 324 U.S. 548 (1945)... TEE eee

Matos v. Hermanos, 300 U.S. 429 (1937) ........ 18

Matton Steamboat Co. v. Murphy, 319 US. 412

RRS midamenia 4

Missouri v. Jenkins, 495 U.S. 33 (1990)............ 8

Orr v. Orr, 440 U.S. 268 (1979) ........cccsssserssnssrssnsenecsseesenscesenseee 6

Outland v. Civil Aeronautics Board, 284 F.2d 224

(D.C. Cir. 1960) 7

Pennsylvama v. Finley, 481 U.S. 551 (1987) L 5

People v. Doss, 46 N.E.2d 984 (Il), cert. denied sub

nom. Doss v. Illinois, 320 U.S. 762 (1943) 3

Pernell v. Southall Realty, 416 U.S. 363 (1974)......... 18, 19, 20

Pfister v. Northern Illinois Finance Co., 317 US.

144 (1942)...... ou

Phoenix Railway Co. v. Landis 231 U.S. 578 (1918)............ 19

Ramah Navajo School Boara v. Bureau of Reve-

nue, 458 U.S. 832 (1982)... eee ‘tei

Santa Fe Central Railway Co. v. Friday, 939 US.

694 (1914).. 18

Santos v. Guam, 436 F.3d 1051 (9th Cir. 2006) ihe dia siekiahl 5,9

Stone v. INS, 514 U.S. 386 (1995) =

United States v. Fullard-Leo, 331 U.S. 256 (1947) eater a 18

Waialua Agricultural Co. v. Christian, 305 U.S. 91

CBR NSS SR SA eS 18, 19

Washington v. Confederated Tribes of Colville In-

dian Reservation, 447 U.S. 134 (1980) ..0.......ccccceseseeesees 6,8

Wayne United Gas Co. v. Owens-Illinois Glass Co.,

ae ee acelencninielisiibtiigtigeiteincaipataisheiaictenitiateialylingi 4

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Wilentz v. Sovereign Camp, W.O.W., 306 U.S. 573

i icccacincisitecibiuneihtininsciitetaiiintiignbienaiiatealicinttesiaitpelbiinigt 8

STATUTES AND RULES

48 U.S.C. $§ 1401a-1401b. hcelicdidanh theaettbanpiaintiannciinaiinnis 13

REE NRT RE SNE ee POS 1]

Act of Apr. 12, 1900, ch. 191, 31 Stat. 77.0.0... -cecceesseees 12,14

Act of Apr. 30, 1900, ch. 339, 31 Stat. 14] ec cceeccccceeneeee 12

Act of July 1, 1902, ch. 1369, 32 Stat. 691... cececcsoesneesneenes 12

Act of Aug. 24, 1912, ch. 387, 37 Stat. 512 002 eee ecesceeeee 14

Act of Aug. 29, 1916, ch. 416, 39 Stat. 545 00... ccececsccsceenenee 12

Act of Oct. 27, 1949, ch. 769, 63 Stat. 940 2... eccccccessneseneeee 12

Act of Aug. 1, 1950, ch. 512, 64 Stat. 384 20 eeeeeoee 12, 16

Pub. L. No. 95-134, 91 Stat. 1159 (Oct. 15, 1977)

~ (codified at 48 U.S.C. § 1421i(a))_............. 16

Fg Re EN NS a Oe SO ee oe 7

LEGISLATIVE HISTORY

H.R. Rep. No. 64-499 (1916)........... - 13

H.R. Rep. No. 74-2290 (1936)..... 14

H.R. Rep. No. 81-682 (1949)....... ‘ 13

S. Rep. No. 81-1152 (1949)............... 13

ee ee i ietipieticabattiarartersotecinngienscscntnininsinsiitia 13

S. Doc. No. 56-147 (1900) . 14

S. Doc. No. 57-77 (1901) ..........cccseesee aa

1983 Omnibus Territories: Hearing Before the S.

Subcomm. on Energy Conservation and Sup-

ply of the Comm. Energy & Natural Res. (Oct.

REESE A EMS eee re 20

OTHER AUTHORITIES

Bank of Hawaii, Guam Economic Report (Oct.

SE nescnicrtenttuetateriesegenttescatsapenitorininivensditnautegnstinananaanennanastesn 17

GAO, U.S. Insular Areas: Economic, Fiscal, and

Financial Accountability Challenges (Dec.

Vv

TABLE OF AUTHORITIES—Continued

(1931)

195])..

(3d ed. 2005)

Page(s)

Jensen, Property Taxation in the Uniled States

“ 15

Jurisdiction of the Supreme Court of the United

States (R. Wolfson & P. Kurland eds., 2d ed.

th 3,4

14 McQuillin, The Law of Municipal Corporations

ll

Newcomer, The Decline of the General Property

Tax, 6 Nat'l Tax J. 38 (1953) 16

Petition for writ of certiorari, Guam v. Pacificare

Health Insurance Co. of Micronesia, Inc., No.

04-1074 (U.S.) (docketed Feb. 7, 2005)... eee 9,10

Petition for writ of certiorari, Moylan v. A.B. Won

Pat Guam International Airport Authority,

No. 04-1480 (U.S.) (docketed May 10, 2006)................ 9,10

Shannon, Conflict between State Assessment Law

and Local Assessment Practice, in Property

Taxation USA (R. Lindholm ed., 1967) 15

17 Wright & Miller, Federal Practice & Procedure

8

(2d ed. 1998)

I THE PETITION For A Writ OF CERTIORARI FROM THIS

COURT WAS TIMELY

This Court has repeatedly recognized that actions that

suspend the finality of a judgment sought to be reviewed

restart the running of the 90-day period for filing a certiorari

petition with this Court. Both petitioner’s filing of a proper

petition for certiorari with the Ninth Circuit—at a time

when that court had exclusive jurisdiction to consider such

petitions—and the Ninth Circuit’s granting of the petition

did just that, by subjecting the Guam Supreme Court’s

judgment—and thus the parties’ rights--to revision. Re

spondent acknowledges (Br. 10) that, in the unusual circum.

stances of this case, the Ninth Circuit played a role analo-

gous to that of a state high court exercising discretionary

review over a lower court’s judgment, and thus that peti-

tioner’s filing of a timely certiorari petition with the Ninth

Circuit prevented the 90-day clock from running. Respon-

dent also does not contest, but is hesitant to acknowledge,

that the Ninth Circuit’s granting of the petition continued

the suspension of the filing period.' Respondent resists the

full logic of the analogy, however, by insisting that the clock

was not suspended throughout the pendency of the writ of

the certiorari, but instead was restarted by the October 2004

amendment of the Guam Organic Act. None of respondent’s

arguments bears scrutiny.

A. The Considerations Driving The Timeliness Deci-

sions Cited By Respondent Are Not Present Here

1. Respondent identifies (Br. 15) what he claims are

four categories of decisions (two containing only a single de-

cision) that supposedly establish the rule that “a lower

court's resolution of its jurisdiction to resolve the merits of a

case after that court already has been divested of jurisdic-

tion over the case does not extend the time for filing a peti-

tion for a writ of certioran.” Respondent contends that this

‘That hesitancy may explain the puzzling fact that the timeline of-

fered by respondent on page 15 of his brief omits altogether the Ninth

Circuit's granting of petitioner's certiorari petition on October 23, 2003.

2

case is such a case, and that the Ninth Circuit’s deliberations

following amendment of the Guam Organic Act in October

2004 therefore ceased to extend the time for filing a certio-

rari petition here. That argument fails for several reasons.

First, in this case, unlike in all of the ones described by

respondent, the court below had affirmatively asserted ju-

risdiction over the case by granting the certiorari petition

before the Guam Organic Act was amended. This Court in

effect emphasized that fundamental point in its wording of

the first question presented by referring to the period dur-

ing which “the writ of certiorari . . . was pending before” the

Ninth Circuit (emphasis added). Thus, the lower court here

did in fact treat its granting of the writ of certiorari as

“put[ting] the basis of*th[e] earlier order again in issue.”

Pfister vy. Northern Ill. Fin. Co., 317 U.S. 144, 149 (1942).

Contrary to respondent's assertion (Br. 14), holding that the

28 U.S.C. § 2101(c) clock did not restart until the Ninth Cir-

cuit made its determination and dismissed the case in no way

opens the door to “dissatisfied litigants filing in the wrong

court to extend proceedings and waiting for that court to

declare its lack of jurisdiction before seeking further review

from this Court.” Instead, petitioner seeks recognition of a

narrow application of this Court’s normal rule that where

the finality of an underlying judgment has previously been

suspended by an intermediate court's review on the merits,

such suspension continues until the court completes its re-

view—even if that review includes consideration of an tnter-

vening change in its jurisdiction.

The sole decision in respondent's first category (Br. 15-

16), Market Street Railway Co. v. Railroad Commission,

324 U.S. 548 (1945), is not analogous to this case for precisely

this reason. In Market Street Railway, this Court stated in

dictum that the 90-day clock would restart after the expira-

tion of a state statutory deadline for consideration of an ini-

tial rehearing petition, even if the petitioned state court had

not yet formally denied the petition. Market Street Railway

thus involved the routine application of well-established

3

state procedural rules concerning petitions for rehearing,’

not, as in this case, application of a federally mandated ex-

haustion requirement where the lower court had properly

asserted jurisdiction and had begun merits deliberations be-

fore an intervening change in law required that court to re-

assess its jurisdiction over the pending matter.

Second, to the extent the decisions in respondent's three

other categories (Br. 16-20) bear any resemblance to this

case, both the rule and rationale of those decisions support

resetting the filing period here. Those decisions hold that

unlike the filing of initial, timely petitions for rehearing,

which suspend the operation of appellate filing deadlines un-

til the petition is resolved, requests for leave to file second

or untimely petitions for rehearing or other post-judgment

relief only reset appellate deadlines if they actually prompt

the petitioned court to reopen consideration of the underly-

ing judgment.’ That rule favors suspension here because, as

noted above, petitioner’s certiorari petition to the Ninth Cir-

cuit was timely and the Ninth Circuit’s grant of certiorari

opened the merits of the Guam Supreme Court’s judgment

to reconsideration.

? Thus Court's decision to dismiss the petition for wnt of certiorari as

untimely filed in Doss v. /Ldimots, 320 U.S. 762 (1948), also appears to fit in

this category. The Supreme Court of Illinois issued an imitial opinion on

January 1, 1943. Petitioner filed a rehearing petition, but on March 11, 1943,

the court struck the petition as violating court rules. People v. Doss, 46

N.E.2d 984 (Ill. 1943); see also Jurisdiction of the Supreme Court of the

United States § 384, at 769 (R. Wolfson & P. Kurland eds., 2d ed. 1951).

Thus, Doss appears to stand for the proposition that a defective initial re

hearing petition that does not satisfy relevant state rules does not operate

to reset appellate filing requirements. That rule has no application to this

case.

* Respondent (Br. 16) places Isenberg v. Sherman, 236 U.S. 547

(1982), which involved the filing of a motion to recall a state supreme

court's rermittitur based on claims of fraud on the court, in a category of its

own. But it involved the same considerations that motivate the rule on

successive or untimely petitions for rehearing. The state court expressly

charactenzed the motion as “an attempt to secure a second rehearing on

the merits.” /senberg v. Sherman, 7 P.2d 1006, 1007 (Cal. 1932) (en bane).

4

Moreover, the prudential considerations underlying this

Court’s rule denying finality-suspending effect to many suc-

cessive and untimely petitions are plainly not present here.

As respondent notes, this Court has placed on petitioners

the risk that a successive or untimely request for rehearing

or other post-judgment relief will be denied, thus requiring

petitioners to file with this Court before knowing whether

the court below will grant the request. See, eg., Wayne

United Gas Co. v. Owens-Iil. Glass Co., 300 U.S. 131, 137

(1937). But the Court has done so because (i) such filings

necessarily arise only when a petitioner has already had an

opportunity to seek reconsideration at least once; and thus

(ii) allowing later petitions automatically to extend appellate

filing deadlines would invite abuse and substantially inter-.

fere with the repose provided by such time limits. See, e.g.,

Jurisdiction of the Supreme Court § 384, at 772-773 (noting,

in reference to Isenberg, that “to hold that such a maneuver

tolled the time for Supreme Court review would be to per-

mit losing parties to attack highest state court judgments

with baseless charges of fraud in the procurement at any

time after their entry, thus for practical purposes nullifying

the time limit on review”); cf Matton Steamboat Co. v.

Murphy, 319 U.S. 412, 415 (1943) (per curiam) (“Would-be

appellants could prolong indefinitely the appeal period, by

making application to one judge within the three months and

upon its denial by applying successively to other judges even

after the prescribed time for appeal had ended.”).

Neither of those conditions is present here. Petitioner

did not engage in seriatim or untimely filings, but rather

filed a single timely petition for certiorari in order to ex-

haust intermediate appeals as required by federal law. And

petitioner can hardly be accused of trying to game the sys-

tem to prolong the appellate process when, unlike in the

cases upon which respondent relies, the event that arguably

created uncertainty about the filing deadline in this Court

(i) was not an action by petitioner but enactment of a statute

by Congress, and (ii) occurred after petitioner had filed and

5

the court of appeals had granted his one post-judgment peti-

tion.*

2. In these respects, a better analogy is to this Court’s

practice under 28 U.S.C. § 1257, since both that statute and

the Organic Act at the time the Guam Supreme Court ren-

dered its judgment required exhaustion of intermediate ap-

peals before seeking review by this Court. Under § 1257,

this Court has accepted a number of cases for review in

which a state high court had initially issued a writ of certio-

rari or agreed to exercise other discretionary review, but

then dismissed the writ as improvidently granted without

elaboration. That practice supports petitioner here because

in those cases, unlike in the successive and untimely petition

cases, even when it is unclear whether the state high courts

considered the merits of the underlying judgments, the tim-

ing of the filings indicates that this Court treated its dead-

line as running from the date of the high court dismissals.’

* Respondent suggests, in the alternative (Br. 24 n.6), that the tolling

effect of the Ninth Circuit’s grant of certiorari in this case should be con.

sidered to have terminated when the Ninth Circuit handed down its deci-

sion in Santos v. Guam, 436 F.3d 1051 (9th Cir. 2006), in which the Ninth

Circuit addressed the effect of P.L. 108-378 on pending appeals. But if the

grant of certiorari tolled the running of the clock, then it certainly did so

until the writ of certiorari was dismissed, since it was not until that dis-

missal that the possibility of the Ninth Circuit's altering the parties’

rights was eliminated. The Ninth Circuit made clear that the writ re-

mained pending when it “resubmitted” this case after issuing the Santos

decision (Pet. App. 5la), and the court might have distinguished Santos:

this case had not received even one level of appellate review in the Guam

system, it presents separation-of-powers concerns not involved in Santos,

and, as the Santos decision itself noted, the Ninth Circuit had previously

recognized a “manifest injustice” exception to the application of jurisdic.

tion-stripping statutes to pending cases, see Santos, 436 F 3d at 1053-1054

(discussing Gioda v. Saipan Stevedoring Co., 885 F 2d 625 (9th Cir. 1988)).

* See, e.g., Pennsylvania v. Finley, 481 U.S. 551 (1987) (reviewing

the merits of a Pennsylvania Superior Court decision concerning post-

conviction rights issued June 22, 1984, where the Pennsylvania Supreme

Court dismissed a discretionary appeal as improvidently granted on April

23, 1986, and a petition for writ of certiorari to this Court was filed there-

after); Belknap, Inc. v. Hale, 463 U.S. 491 (1983) (reviewing the merits of

a decision by the Kentucky Court of Appeals issued on April 24, 1981,

6

Moreover, respondent’s contention regarding the effect

of deliberations by a court that ultimately decides it does not

have jurisdiction would bar many parties from seeking re-

view by this Court under § 1257. As respondent himself

notes (Br. 19-20 n.5), this Court has held that petitioners

must seek review from state high courts before invoking this

Court's jurisdiction unless it is absolutely clear as a matter

of settled state law that the state high court lacks jurisdic-

tion over the case. Respondent’s purported “rule” would

thus create a Catch-22, since petitioners who seek the re-

quired review but obtain a negative ruling from a state high

court would then often be barred from appealing to this

Court on timeliness grounds.

B. Respondent's Proposed Alternative Routes To

Review By This Court Are Impractical

Respondent’s suggestions that petitioner should have

filed a “protective” certiorari petition with this Court before

the court of appeals issued its decision or requested that the

Ninth Circuit vacate the Guam Supreme Court’s judgment

in order to restart this Court’s 90-day filing clock only high-

light the unreasonableness of respondent’s position. A rule

that would encourage (or in fact require) protective filings

would serve neither this Court nor litigants well, for it

would foster uncertainty and needless expenditure of judi-

cial resources. See, ¢.g., Washington v. Confederated Tribes

of Colville Indian Reservation, 447 U.S. 134, 149-150 (1980)

where the Kentucky Supreme Court dismissed review as improvidently

granted on February 16, 1982, and a petition for writ of certiorari to this

Court was filed thereafter); Ramah Navajo Sch. Bd. v. Bureau of Reve-

nue, 458 U.S. 832 (1982) (reviewing the merits of a New Mexico Court of

Appeals decision issued July 1, 1980, where court denied rehearing on July

11, 1980, the New Mexico Supreme Court quashed its writ of certiorari as

improvidently granted on March 30, 1981, and a notice of appeal and

amended notice of appeal were filed with this Court thereafter); Orr v.

Orr, 440 U.S. 268 (1979) (reviewing the merits of a decision by the Ala-

bama Civil Court of Appeals issued on March 16, 1977, where rehearing

was denied on Apri] 12, 1977; the Alabama Supreme Court quashed its

writ of certiorari as improvidently granted on November 10, 1977; and a

notice of appeal was filed with this Court thereafter).

7

(adopting rule to minimize protective filings under 28 U.S.C.

§ 2101); Crown Coat Frunt Co. v. United States, 386 U.S.

503, 515 (1967) (adopting rule to minimize protective filings

under statutes creating limited waivers of statutory immu-

nity). As the D.C. Circuit has noted, rules requiring protec-

tive filings bring with them a “whole train of unnecessary

consequences . . . : the [agency] and other parties may be

called upon to respond and oppose the motion for review;

when the [agency] acts, the petition for judicial review must

be amended to bring the petition up to date.” Outland v.

Civil Aeronautics Bd., 284 F.2d 224, 228 (D.C. Cir. 1960).*

Respondent’s proposed rule that appellate filing clocks

are not suspended when a lower court evaluates the effect of

an intervening change in a jurisdictional statute would be

particularly wasteful of this Court’s resources, since it would

create a significant risk that “a judgment of a [lower] court

susceptible of being reviewed by this court would ... be

open at the same time to the power of a [lower] court to re-

view and reverse,” if the lower court ultimately determines

that its jurisdiction remains intact. Andrews v. Virginian

Ry. Co., 248 U.S. 272, 275 (1919).’

° This Court has repeatedly cited Outland with approval, see, ¢.9.,

ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 285 (1987),

American Farm Lines v. Black Bali Freight Serv., 397 US. 532, 541

(1970); Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 326-

327 (1961), and has further endorsed the D.C. Circuit's judicial-economy

rationale, see, ¢.g., Stone v. INS, 514 U.S. 386, 391-392 (1995) (quoting di-

rectly from Outland in setting out the “policy supporting the nonfinality

rule,” but finding it did not apply under an unusual provision of the Immi-

gration and Nationality Act).

Respondent's related suggestion (Br. 27 n.8) that petitioner should

have filed a petition for certiorari before judgment under 28 U.S.C.

§ 2101(e)}—-which under this Court’s rules may be granted only “upon a

showing that the case is of such imperative public importance as to justify

deviation from normal appellate practice and to require immediate deter-

mination in this Court,” S. Ct. R. 11—would function only to impose an

unnecessary additional burden on litigants and on the Court.

’ The decisions respondent cites on this score (Br. 27) all concern re-

view of decisions of three-judge district courts. Were this Court to adopt

its procedures for handling appeals from those courts to this case, as re-

8

Respondent’s suggestion that petitioner should have

asked the Ninth Circuit to vacate the Guam Supreme

Court’s judgment in order to restart the clock under

§ 2101(c) is plainly at odds with respondent’s assertion that

P.L. 108-378 immediately stripped the Ninth Circuit of ju-

risdiction over this case. In addition, it ignores this Court’s

general rule that “[t]he time for applying for certiorari will

not be tolled when it appears that the lower court ...

amended its order solely for the purpose of extending that

time.” Missouri v. Jenkins, 495 U.S. 33, 49 (1990).*

spondent advocates, the Court would proceed to decide the jurisdictional

issue upon receipt of the petition—without the benefit of briefing and a

decision by the lower court that would be simultaneously considering the

same issues—in order to determine whether the petition should be dis-

missed. See, e.g., Wilentz v. Sovereign Camp, W.O.W., 306 U.S. 573, 579-

582 (1939). Such a procedure may be unavoidable under a statutory

scheme in which certain direct appeals of right lie with this Court, but

there is no reason to invite such waste of this Court’s resources in other

contexts. Alternatively, if the Court simpiy delays any consideration of

the petition until the lower court issues its ruling, the protective filing

would truly constitute “a redundant slip of paper” “devoid of any sound

supporting rationale.” Confederated Tribes, 447 US. at 150.

*It is again telling that respondent (Br. 27-28) relies exclusively on

precedents concerning appeals from three-judge district courts, which

were largely abolished in 1976 because of widespread dissatisfaction with

the burdens they imposed on the federal judiciary, including this Court.

See generally 17 Wright & Miller, Federal Practice & Procedure §§ 4234,

4235 (2d ed. 1998). In particular, the right of direct appeal to this Court

created such an enormous workload that this Court began to issue “a be-

wildering and constantly changing variety of rules on what orders were

directly appealable to it and what were reviewable in the courts of ap-

peals.” Jd. The resulting system was “so complex as to be virtually be-

yond belief,” even to federal jurisdiction specialists. Jd. To mitigate the

impacts of this system, the Court adopted the practice of vacating and

remanding judgments (over which it entirely lacked direct appellate ju-

risdiction because they should not have been heard by three-judge courts

in the first instance) to the original court for re-entry of judgment in order

to restart the clock for seeking review from the court of appeals. The pre-

cise origin and extent of the Court’s authority for this practice is unclear,

and it is rarely exercised today. Moreover, post-1976 decisions have spe-

cifically resisted attempts to invoke this practice in other contexts. See,

e.g., Donovan v. Richland County Ass'n for Retarded Citizens, 454 U.S.

389, 390-391. (1982).

9

C. Petitioner’s Filings In Other Cases Are Consistent

With His Position Here

Finally, the positions adopted by petitioner in Santos v.

Guam and two other cases mentioned by respondent are in

no way inconsistent with his conduct in this case.

In Santos, a criminal case, petitioner Attorney General

did not seek additional review of the conviction by any

appellate court; rather, the defendant did. When the Ninth

Circuit requested supplemental briefing on the effect of the

October 2004 amendment of the Guam Organic Act in P.L.

108-378, petitioner’s brief spent four paragraphs outlining

arguments that, under Bruner v. United States, 343 U.S. 112

(1952), the statute divested the Ninth Circuit of jurisdiction

over pending appeals. That discussion was preceded, how-

ever, by a note explaining that attempts to apply statutes

retroactively may be impermissible where they involve “the

impairment of a vested right.” Br. 2. The brief then spent

seven pages following the Bruner discussion explaining why

P.L. 108-378 could be understood to have affected the sub-

stantive or vested rights of parties engaged in pending liti-

gation, and thus why P.L. 108-378 should not be interpreted

to deprive the Ninth Circuit of jurisdiction over pending ap-

peals. Petitioner explained that such parties could be con-

sidered to have been substantively prejudiced if P.L. 108-378

were read to eliminate Ninth Circuit review over pending

cases because, in light of this Court’s limited docket, such a

reading would effectively foreclose the possibility of judicial

review beyond the Supreme Court of Guam. Br. 7. Notably,

petitioner did not assert that pending litigants would be

barred from seeking Supreme Court review, but rather that

the vast majority of cases simply would not meet this

Court’s certiorari criteria.’

* Petitioner's filing of certiorari petitions with this Court in Guam v.

Pacificare Health Insurance Co. of Micronesia, Inc., No. 04-1074, and

Moylan v. A.B. Won Pat Guam International Airport Authority, No. 04-

1480, was also consistent with his position in this case (and with the posi-

tion he advocated in Santos concerning cases pending before the Ninth

10 \

Il. THE GUAM SUPREME COURT’S INTERPRETATION OF THE

ORGANIC ACT’S DEBT LimIT IS ERRONEOUS

A. The Guam Supreme Court’s Interpretation Is

Contrary To The Organic Act’s Text And Purpose

1. Revealingly, respondent waits until page 44 of his

brief to concede grudgingly that “[t]he starting point for our

interpretation of a statute is always its language.”” Even

then, despite acknowledging the canon that every word

should be given some meaning, respondent simply fails to

explain why the word “tax” appears in Guam’s debt-

limitation proviso. If Congress had intended to base the

debt ceiling on the full value of property regardless of how

the Guam government’s property tax system was struc-

tured, it could simply have used the phrase “aggregate

valuation.”"° Instead, it included the qualifier “tax,” with the

evident purpose of tying the level of permissible indebted-

ness to the valuation of property used to generate property

Circuit). The judgments at issue in those cases, unlike the one here, did

not become final, even initially, until after P.L. 108-378’s effective date of

October 30, 2004. The Guam Supreme Court’s judgment in Pacificare was

handed down on September 20, 2004, but a timely petition for rehearing

by that court was not denied until November 11, 2004. The Guam w-

preme Court’s judgment in A.B. Won Pat issued on February 8, 2005.

Thus, when petitioner had to decide whether to seek review of those

judgments, it was clear that this Court, rather than the Ninth Circuit, was

the court to which a certiorari petition should be directed. No similar clar-

ity existed about the fate of judgments, like the one at issue here (and the

one at issue in Santos), that had already been accepted for review by the

Ninth Circuit well before P.L. 108-387 was enacted. Whatever petitioner

said in passing in his Santos brief about cases still pending in the Guam

courts is irrelevant to this case, which was already before the Ninth Cir-

cuit.

' Cf. Board of Educ. v. Passey, 246 P.2d 1078, 1079 (Utah 1952);

Halsey & Co. v. City of Belle Plaine, 104 N.W. 494, 495-497 (Iowa 1905);

Hansen v. City of Hoquiam, 163 P.391, 392 (Wash. 1917). Contrary to

respondent’s argument {Be 43.44)—Passey, Halsey, and Hansen all fo-

cused on the specific language of their state debt limitations as referring

to the “value of the taxable property.” Here, Congress modified Guam’s

debt limitation to focus specifically on “aggregate tax valuation.”

1]

tax revenues—however that tax valuation system is struc-

tured by local officials."'

2. Respondent’s primary argument (Br. 32-34) is that

Congress “precisely” and “purpose{fully]” limited borrowing

“to some percentage of the aggregate assessed value of tax-

able property” in certain territories, but not in others (in-

cluding Guam) (emphasis in original). Yet he articulates no

rationale why Congress would have intended such a strange

result. And he identifies no indication that Congress recog-

nized such a contrast or expected different valuation meas-

ures to be used for debt limitation and for property taxation.

In fact, a review of territorial debt-limitation provisos dem-

onstrates that while Congress used different phrasings over

time, it consistently advanced two broader goals: restrain-

ing borrowing to prudent levels and linking territorial debt

caps to local property taxation systems, however those sys-

tems were structured in individual territories.’ Petitioner’s

interpretation promotes both of these goals by requiring

' Respondent’s argument (Br. 44) about the significance of the Or-

ganic Act’s language authorizing the Guam Legislature to provide for

“(tJaxes and assessments on property, internal revenues, sales, license

fees, and royalties for franchises, privileges, and concessions,” 48 U.S.C.

§ 1423a, provides no support for his proposed interpretation. “Assess-

ments, as distinguished from other kinds of taxation, are those special and

local impositions upon the property in the immediate vicinity of municipal

improvements which are necessary to pay for the improvement and are

laid with reference to the special benefit which the property is supposed

to have derived therefrom.” 14 McQuillin, The Law of Municipal Corpo-

rations § 38.01 (3d ed. 2005). Thus, “{tjaxes and assessments” refers to

distinct revenue streams, as do all of the other items listed. See, ¢.g.,

Beecham v. United States, 511 U.S. 368, 371 (1994) (“That several items in

a list share an attribute counsels in favor of interpreting the other items

as possessing that attribute as well.”). Respondent would render this

language superfluous (and ungrammatical) by reading it to create “two

separate powers, to tax and to assess,” relating to the same revenue

stream

2 Cf. Jama v. Immigration & Customs Enforcement, 543 U.S. 335,

343 n.3 (2005) (refusing to apply the presumption that Congress intends

differences in language to carry different meanings where the record

shows “numerous changes that are attributable to nothing more than sty-

listic preference” (emphasis in original)).

12

territorial officials to compare apples to apples (i.e., using

the same valuation that generates property tax revenues to

calculate debt limits). Respondent’s interpretation, by con-

trast, would lead to anomalous results that cannot be

squared with congressional purposes.

Respondent’s failure to identify any statutory or legisla-

tive history recognizing the contrast in the wording or op-

eration of debt-limitation provisions that he emphasizes is

telling given Congress’s numerous debt-limitation enact-

ments. It is striking, for example, that both the 56th Con-

gress (1899-1901) and the 81st Congress (1949-1951) enacted

provisions limiting certain territories’ debt to a percentage

of “assessed value” or “assessed valuation” (Hawaii and the

Virgin Islands, respectively) and to “tax valuation” for oth-

ers (Puerto Rico and Guam, respectively),’ yet respondent

has not identified a single indication that Congress expected

the debt-limitation calculations to differ substantively as be-

tween the pairs of jurisdictions. Similarly, in the Philip-

pines, the 1902 Organic Act limited municipal borrowing to a

specific percentage of “assessed valuation,” but Congress

revised the debt-limitation provision in the 1916 Organic Act

to largely echo the Puerto Rican limitation on debt as a per-

centage of “aggregate tax valuation.” The 1916 committee

report notes the new language without suggesting that any

'’ Compare Act of Apr. 30, 1900, ch. 339, § 55, 31 Stat. 141, 151 (limit-

ing Hawaii’s territorial debt to “one per centum upon the assessed value

of taxable property” annually and “seven per centum of such assessed

value” cumulatively); Act of Oct. 27, 1949, ch. 769, § 1, 63 Stat. 940 (limit-

ing the Virgin Islands’ territorial debt to “10 per centum of the aggregate

assessed valuation of the taxable real property in the islands”); with Act of

Apr. 12, 1900, ch. 191, § 38, 31 Stat. 77, 86 (limiting Puerto Rico's territo-

rial debt to “seven per centum of the aggregate tax valuation of its prop-

erty”); Act of Aug. 1, 1950, ch. 512, § 11, 64 Stat. 384, 388 (limiting Guam’s

territorial debt to “10 per centum of the aggregate tax valuation of the

property in Guam”).

* Compare Act of July 1, 1902, ch. 1369, § 66, 32 Stat. 691, 707 (limit-

ing municipal debt to “five per centum of the assessed valuation of the

{municipality's} property”), with Act of Aug. 29, 1916, ch. 416, § 11, 39

Stat. 545, 548 (limiting same to “seven percentum of the aggregate tax

valuation of (the municipality’s] property”).

13

substantive change was intended.” To the contrary, to the

extent that legislative history on one territory’s debt provi-

sion references other territories’ limits, Congress appears to

have emphasized their similarities rather than differences."

_ Respondent relies on snippets of legislative history from

the Virgin Islands and Alaska that he claims suggest. that

“assessed valuation” consistently refers to fractional value

and “taxable value” to full value. Respondent’s own analysis

of the Virgin Islands statutes (Br. 33 n.12), however, under-

cuts the argument by indicating that those statutes’ use of

the term “assessed” actually refers to full value, not a frac-

tional, assessed value.'’ Moreover, when Congress enacted

the Virgin Islands debt cap in 1949, it changed the proposed

language from “aggregate tax valuation” to “aggregate as-

sessed valuation” without indicating that a substantive

change was intended. See H.R. Rep. No. 81-682 (1949); S.

Rep. No. 81-1152 (1949) Accordingly, the Virgin Islands

statute does not appear to reflect a “purposefful]” decision by

Congress to restrict debt limits based on “aggregate assessed

valuation” to fractional value, while mandating that other ter-

ritories’ limits (such as Guam’s) be based on full value.

'S See H.R. Rep. No. 64-499, pt. 1 at 12 (1916).

© See, ¢.g., S. Rep. No. 94-433, at 84 (1976) (noting the inclusion of a

debt limitation based on “aggregate assessed valuation” in the Northern

Mariana Islands’ Constitution and providing cites to “[s}imilar provisions”

for Virgin Islands, Guam, and Puerto Rico, without noting that the latter

two provisions reference “aggregate tax valuation”), S. Rep. No. 81-1152,

at 1-2 (1949) (noting in connection with Virgin Islands legislation that

“Conzress in the past has granted similar authority to the local govern-

ments and to municipalities in Hawaii, Alaska, and Puerto Rico. This bill

contemplates no change in congressiona! policy.”). ~

'’ Specifically, as respondent himself notes (Br. 32-33 & n.12), the

Virgin Islands property tax law enacted in 1936 mandated that taxes

“shall be computed on the basis of the actual value of such property” and

set a default tax rate of 1.25% on such “assessed value” until such time as

the island’s municipalities enacted conforming laws of their own. 48

U.S.C. §§ 1401a-1401b. Accordingly, there was no distinction between

assessed and actual value at the time that Congress enacted the 1949

statute authorizing the territorial and municipal governments to incur

debt not in excess of 10% of “aggregate assessed valuation.”

14

Similarly, as to Alaska, in light of the fact that its Sec-

ond Organic Act specifically required that for taxation pur-

poses “assessments shall be according to the actual value

thereof,”"* it is hardly surprising that a 1936 committee re-

port discussing legislation authorizing Alaskan municipali-

ties to incur debt up to 10% of “aggregate taxable value” of

property describes the debt cap as “a limitation of 10 percent

of the total value of the taxable property.” H.R. Rep. No.

74-2290, at 1 (1936) (discussing Pub. L. No. 74-626, § 1, 49

Stat. 1388 (1936)). Although respondent places great signifi-

cance on the report’s statement that the Alaskan statute

was “in harmony” with Puerto Rico’s debt limitation, this

comment is consistent with petitioner’s interpretation. In

light of the fact that Congress had not required Puerto Rico

to use an actual valuation system, the debt limitations are

most naturally read “in harmony” if they are simply con-

strued to require that the valuation used to generate prop-

erty tax revenues be used for purposes of debt-limitation

calculations as well—however that valuation is calculated—

rather than to require use of full valuation per se.”

Thus, respondent fails to account for the fact that the

Virgin Islands and Alaska were the only territories out of

'* Act of Aug. 24, 1912, ch. 387, § 9, 37 Stat. 512, 515 (dictating that

property taxation “assessments shall be according to the actual value

thereof” and capping taxation by territorial and municipal governments at

specified percentages “of the assessed valuation of property”).

® Puerto Rico, like Guam, apparently had no pre-existing property-

tax system at the time Congress first capped its debts at a percentage of

“aggregate tax valuation” (although Puerto Rico later went on to adopt an

actual valuation system). Act of Apr. 12, 1900, ch. 191, §§ 38, 40, 31 Stat.

86; S. Doc. No. 56-147, at 26, 39-40, 77, 94-95 (1900); S. Doc. No. 57-77

(1901) (reprinting C.B. 5, §§ 1, 8 (Jan. 31, 1901)); Downes v. Bidwell, 18

U.S. 244, 284 (1901). Accordingly, even if the 1936 Alaskan report is con-

strued as suggesting that Alaska’s debt limitations, like Puerto Rico's,

would be based on actual valuation, such a statement does not indicate

that Congress intended the phrase “aggregate tax valuation” to mandate

such a result. It might also be noted that, given that the Puerto Rican

provision refers to “aggregate tax valuation” rather than “aggregate tax-

able value,” the comment supports petitioner’s argument that Congress

did not intend minor variations in language to have substantive impact.

15

the larger group in which Congress had previously dictated

specific federal requirements regarding property taxation.

When read in proper context, the legislative history on

which respondent relies does not support a sharp distinction

between “taxable value” and “assessed valuation,” but

rather simply reflects congressional attempts to describe

and harmonize the operation of the debt limitations with

those specific territories’ pre-existing, federally mandated

property tax statutes.

Indeed, that Congress left all of the territories cited by

respondent other than the Virgin Islands and Alaska free to

adopt either fractional or actual valuation systems illus-

trates further why respondent’s interpretation is unwork-

able and inconsistent with Congress’s overall goals.” Had

all of the unrestricted territories subsequently decided to

adopt fractional-valuation systems, respondent’s interpreta-

tion would have required Hawaii and the Northern Mariana

Islands to calculate their debt limit based on the assessed,

fractional value subject to taxation, while basing the Puerto

Rico and Guam limits on full value. Respondent offers no

explanation why Congress would have intended that per-

verse outcome.

The broader history of territorial debt caps, then, does

not support respondent’s claim that “tax” and “assessed”

”® Fractional valuation had been used at least as early as 1820, see,

eg., E. Ingraham Co. v. Town & City of Bristol, 132 A.2d 563, 565 (Conn.

1957), but attracted new attention starting in the late nineteenth century

as States struggled with the fact that local assessors had been arbitrarily

tems. See generally Louisville & Nashville R.R. Co. v. Coulter, 131 F.

282, 290-291 (E.D. Ky. 1903), rev'd on other grounds, 196 U.S. 599 (1905);

Passey, 246 P2d at 1079; Jensen, Property Taxation m the United States

35-43 (1931); Shannon, Conflict between State Assessment Law and Local

Assessment Practice, in Property Taxation USA 39, 40-45 (R. Lindholm

ed., 1967).

16

\

have been used as contrasting terms, one referring to full

value and the other to fractional value. Petitioner's inter-

pretation is the most natural because it simply requires ter-

ritorial officials to use the same valuation from which prop-

erty taxes are generated to calculate their debt limitations,

regardless of how those valuation systems are structured.

3. Respondent’s observation that the Guam govern-

ment derives much of its revenue from sources other than

property taxes speaks to the wisdom (or folly) of basing debt

limitations on property valuation generally—regardless of

whether the specific metric is full property value or frac-

tional, assessed value.

Congress was well aware that Guam would have sub-

stantial revenue from non-property tax sources, since the

Organic Act itself provided for the Guam government to re-

ceive “{a}ll customs duties and Federal income taxes derived

from Guam, the proceeds of all taxes collected under the in-

ternal-revenue laws of the United States on articles pro-

duced in Guam and transported to the United States, its

Territories, or possessions, or consumed in Guam, and the

proceeds of any other taxes which may be levied by the

Congress on the inhabitants of Guam,” as well as authorizing

sales taxes, license fees, and various other royalties and con-

cessions. Act of Aug. 1, 1950, ch. 512, §§ 11, 30, 64 Stat. 384,

388, 392." Moreover, the distinction respondent draws be-

tween municipal governments being highly dependent on

property taxes and state governments relying on other

sources of revenue was already clear-by 1950.” Congress

nonetheless chose to base Guam’s debt limitation on the “ag-

gregate tax valuation of the property in Guam,” just as it

had done for the various other territories cited by respon-

"! In 1977, Congress authorized the Guam legislature to levy an addi-

tional 10% income tax on residents, Pub. L. No. 95-134, § 203(c), 91 Stat.

1159-1162 (Oct. 15, 1977) (codified at 48 U.S.C. § 1421i(a)), but did not, it

might be noted, revise the debt cap to permit additional borrowing.

” See, e.g., Newcomer, The Decline of the General Property Tax, 6

Nat’! Tax J. 38, 39-40 (1953) (reporting that in 1950 less than 2% of state

tax revenue and 89% of local tax revenue derived from property taxes).

17

dent, because doing so promotes political accountability and

transparency. The Guam legislature is free to fund its debt

from other sources or to change its fractional system in a

way that would increase its debt cap, but it cannot do the

latter without changing the basic valuation used for prop-

erty tax purposes such that current taxpayers can hold

lawmakers appropriately accountable.” Without such limi-

tations, the legislature could excessively postpone the en-

actment of taxes needed to keep the government within its

means, thereby imposing the burden for current spending on

future taxpayers. To the extent that respondent questions

the wisdom of this policy and its implications for Guam’s cur-

rent economic recovery, it is for Congress rather than this

Court to amend the Organic Act.”

B. The Guam Supreme Court's Decision Is Not Enti-

tled To Deference

Unable to defend the Guam Supreme Court’s interpre-

tation using the usual tools of statutory construction, re-

® Respondent's argument (Br. 42-43) that the Guam government

could raise the borrowing limit by increasing the assessment rate while

lowering the tax rate ignores the political psychology that leads jurisdic-

tions all around the United States to keep assessment rates lower than

full appraised value. That widespread practice, no doubt familiar to mem-

bers of Congress, reflects voters’ preference for assessment rates of less

than 100%, perhaps because voters are both skeptical of the willingness of

legislatures to lower tax rates as property values increase and sensitive to

Cho SS aes eieiag pagent velaee sang land to enpeeiinnd gules put ea-

rent-year tax burdens.

Respondent pleads (Br. 45-47) that the borrowing at issue in this

case would benefit the Guam economy. It may be open to question

whether “taking extraordinary financial obligations, such as borrowing in

the bond markets to fulfil] existing obligations,” Bank of Hawaii, Guam

Economic Report 5 (Oct. 2003), is wise fiscal policy, particularly when

undertaken by a government that suffers from “material weaknesses in

internal! controls over financial operations” and has been unable to achieve

clean audit reports, GAO, U.S. Insular Areas: Economic, Fiscal, and

Financial Accountability Challenges 30 (Dec. 2006). Notably, while the

recent GAO report documents several challenges to Guam’'s economy,

debt-limitation constraints are nowhere mentioned. In any event,

whether the borrowing at issue would be beneficial is irrelevant to the

question of legal permissibility that this Court must resolve.

18

spondent insists that this Court must nonetheless defer to

that interpretation because the issue concerns Guam alone.

No such deference is warranted.

This Court has made clear that Article III courts owe

deference to territorial courts’ interpretations of local law,

not federal law. See Waialwa Agric. Co. v. Christian, 305

US. 91, 109 (1938) (territorial court’s interpretation of Ha-

waiian law concerning validity of actions taken by incompe-

tent to convey or assign property rights); Matos v. Her-

manos, 300 U.S. 429, 432 (1937) (territorial supreme court’s

interpretation of territorial law mandating whether sales

contract was voidable rather than void); Santa Fe Cent. Ry.

Co. v. Friday, 232 U.S. 694, 700 (1914) (territorial court’s

interpretation of territorial statutes defining jurisdiction of

territorial courts). This Court has expressly recognized the

distinction between decisions of territorial courts interpret-

ing local law and decisions interpreting federal law, explain-

ing that “great deference must be paid to local decisions .. .

[wlhere the Constitution or statutes of the United States

{are} not involved.” De Castro v. Board of Comm'rs, 322

U.S. 451, 457-458 (1944) (emphasis added); cf. United States

v. Fullard-Leo, 331 U.S. 256, 259, 269 (1947) (“{whhile in

matters of local law the federal courts defer to decisions of

the territorial courts, we are dealing here with a problem of

federal law” (footnote omitted)). When, as here, a federal

question is presented, no such deference is called for.”

Ignoring this distinction, respondent relies on three de-

cisions to suppert his claim for deference, principally Pernell

v. Southall Realty, 416 U.S. 363 (1974). But Pernell affords

*> The courts of appeals have followed the same policy in excercising

certiorari jurisdiction over decisions of territorial supreme courts. See,

e.g., Gutierrez v. Pangelinan, 276 F.3d 539, 546 (9th Cir. 2002) (deferring

to the Guam Supreme Court on Guam law, but reviewing federal law rul-

ings de novo), Campose v. Central Cambalache, Inc., 157 F 2d 43, 44 (1st

Cir. 1946) (per curiam) (same with regard to Puerto Rico).

° Respondent simply mischaracterizes Santa Fe Cent. Ry. Co. v.

Friday, 232 U.S. 694 (1914), as turning on deference on an issue of federal

law. The determination to which this Court gave deference was the New

19

no basis for deference to the Guam court on the issue pre-

sented in this case. First, Pernell recognized a policy of def-

erence only with respect to decisions of the courts of the

District of Columbia, not those of territorial courts. The

precedents upon which Pernell relied all concerned the Dis-

trict, and this Court has never cited Pernell as supporting

deference to any court outside the District.” Second, the

statute at issue in Pernell was one enacted by Congress in

its role as legislature for the District (pursuant to Art. I, § 8,

cl. 17), not in its role as the national legislature. Thus, al-

though the law was enacted by Congress, it was local in the

relevant sense. The law at issue here, far from being local,

Mexico Supreme Court’s interpretation of a territorial statute defining

the jurisdiction of certain territorial courts. Part of the basis for the New

Mexico court's interpretation, and a reason that this Court thought it

“plainly right,” id. at 700, was that a contrary interpretation would have

brought the local statute into conflict with the New Mexico Organic Act.

But it was the proper interpretation of the territorial statute that was in

question, as the precedent upon which this Court relied in deferring also

makes plain. The Court cited Phoenix Ry. Co. v. Landis, 231 US. 578,

579-580 (1913), which re-stated, with citations to many earlier decisions,

the principle that this Court “is disposed to accept the construction which

the territorial court has placed upon a local statute” (emphasis added). -

Respondent also mischaracterizes Waialua Agric. Co. v. Christian,

305 U.S. 91, 109 (1938), which addressed issues of common law concerning

“the validity of a lease, a contract for maintenance, and a deed,” id. at 93,

not questions of federal statutory law. Wazalua's references to “general”

as well as “local” law, as its footnotes make clear, see id. at 109 & nn.37-38,

were references to the “general” federal common law recognized by this

Court before its decision in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1937).

In the context of the case, then, those references are best understood as

references simply to common, as distinct from statutory, law. Waialua

certainly offers no support for the claim that this Court defers to territo-

rial courts’ interpretations of federal statutes.

7 Respondent thus is simply wrong when he asserts-(Br. 38 n.15)

that Pernell “relied upon a long-standing rule of deference” to territorial

courts’ interpretations of territorial law. On the contrary, Perneil no-

where mentions the territorial deference cases, and those cases have not

mentioned Pernell. One other decision cited by respondent, Hall v. C & P

Tel. Co., 793 F.2d 1354 (D.C. Cir. 1986), is simply an application of Pernell

to a worker's compensation statute for the District that incorporated

many provisions from the equivalent general federal statute.

20

in the sense of being enacted#ither by the Guam legislature

or by Congress as a substitute for the Guam legislature, was

enacted by Congress in its role as constitution-maker for the

territory. The Organic Act defines and constrains the pow-

ers of the Guam government. It would therefore be particu-

larly inappropriate to defer to the decisions of the territory’s

supreme court interpreting the very law designed to limit

the powers of the territory’s government.”

CONCLUSION

For the reasons given above and in petitioner’s opening

brief, the judgment of the Supreme Court of Guam should be

reversed.

* Moreover, while Pernell mentioned the 1970 overhaul of the Dis-

trict’s court system to make it more clearly resemble a state court system

by subjecting decisions of the D.C. Court of Appeals to direct review in

this Court as “lend[ing) additional support” to its practice

of” of deferring to “the courts of the District on local law matters,” 416

U.S. at 369, a comparison on this score only cuts against deference here.

For at the time the judgment under review was handed down (in 2003),

Congress had yet to make the equivalent changes of establishing the

Guam Supreme Court as a co-equal branch of the Guam government and

shifting direct review of its decisions from the court of appeals to this

Court. Those changes were made only in 2004.

While, as respondent notes (Br. 37 n.13), then-Judge Kennedy,

speaking for the Ninth Circuit Judicial Council, endorsed the proposed

legislation that in 1984 would authorize the Guam legislature to create a

territorial appellate court, he also strongly objected to the proposed limi-

tation of the Ninth Circuit’s review to federal questions. 1983 Omnibus

Territories: Hearing Before the S. Subcomm. on Energy Conservation

and Supply of the Comm. Energy & Natural Res. 371-372 (Oct. 6, 1983)

(statement of Anthony Kennedy). The Kennedy/Judicial Council insis-

tence that the Ninth Circuit's review of the territorial appellate court be

Respectfully submitted,

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. Moss

JONATHAN G. CEDARBAUM

KELLY THOMPSON COCHRAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 663-6000

DECEMBER 2006