[House Report 105-742]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-742
_______________________________________________________________________


 
                  GUAM ORGANIC ACT AMENDMENTS OF 1998

                                _______
                                

 September 24, 1998.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2370]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2370) to amend the Organic Act of Guam for the purposes 
of clarifying the local judicial structure and the office of 
Attorney General, having considered the same, report favorably 
thereon with amendments and recommend that the bill as amended 
do pass.
  The amendments are as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Guam Organic Act Amendments of 1998''.

SEC. 2. ATTORNEY GENERAL OF GUAM.

  Section 29 of the Organic Act of Guam (48 U.S.C. 1421g) is amended by 
adding at the end the following new subsection:
  ``(d)(1) The Attorney General of Guam shall be the Chief Legal 
Officer of the Government of Guam. At such time as the Office of the 
Attorney General of Guam shall next become vacant, the Attorney General 
of Guam shall be appointed by the Governor of Guam with the advice and 
consent of the legislature, and shall serve at the pleasure of the 
Governor of Guam.
  ``(2) Instead of an appointed Attorney General, the legislature may, 
by law, provide for the election of the Attorney General of Guam by the 
qualified voters of Guam in general elections after 1998 in which the 
Governor of Guam is elected. The term of an elected Attorney General 
shall be 4 years. The Attorney General may be removed by the people of 
Guam according to the procedures specified in section 9-A of this Act 
or may be removed for cause in accordance with procedures established 
by the legislature in law. A vacancy in the office of an elected 
Attorney General shall be filled--
          ``(A) by appointment by the Governor of Guam if such vacancy 
        occurs less than 6 months before a general election for the 
        Office of Attorney General of Guam; or
          ``(B) by a special election held no sooner than 3 months 
        after such vacancy occurs and no later than 6 months before a 
        general election for Attorney General of Guam, and by 
        appointment by the Governor of Guam pending a special election 
        under this subparagraph.''.

SEC. 3. LEGISLATIVE QUORUM.

  Section 12 of the Organic Act of Guam (48 U.S.C. 1423b) is amended by 
striking ``eleven'' and inserting ``a simple majority''.

SEC. 4. CLARIFICATION OF LEGISLATIVE POWER.

  The first sentence of section 11 of the Organic Act of Guam (48 
U.S.C. 1423a) is amended--
          (1) by inserting ``rightful'' before ``subjects''; and
          (2) by striking ``legislation of local application'' and 
        inserting ``legislation''.

  Amend the title so as to read:

      A bill to amend the Organic Act of Guam to clarify local 
executive and legislative provisions in such Act, and for other 
purposes.

                          Purpose of the Bill

    As reported from the Committee on Resources, the purpose of 
H.R. 2370 is to amend the Organic Act of Guam to clarify local 
executive and legislative provisions in such Act.

                  Background and Need for Legislation

    The Organic Act of Guam was approved on August 1, 1950 (64 
Stat. 384, 48 U.S.C. 1421 et seq.), to provide for Guam's 
governance. The executive, legislative, and judicial branches 
of the government of Guam exist based on the Organic Act. 
Changes to the fundamental functions of any of the three 
branches of government in Guam can only occur by amendments to 
the Organic Act by Congress, as Guam is unable to make changes 
through local law.
    Although Congress has amended the Organic Act of Guam on 
occasion to make allowances for increased efficiency in the 
government of Guam or to correct inconsistencies, in 1976 
Congress authorized Guam to adopt its own constitution to 
provide for a significant increase in self-government (Public 
Law 94-584). The proposed changes to the Organic Act in H.R. 
2370 must be enacted by Congress as amendments to the Organic 
Act as Guam has not yet adopted a local constitution. However, 
these provisions are responsive to current specific requests of 
the Government of Guam and are expected to foster greater 
efficiency and equity.

Attorney General of Guam

    Guam's Attorney General is currently appointed by the 
Governor of Guam with the advice and consent of the Guam 
Legislature. The appointment of the Attorney General is to a 
four year term or until the end of the term of the appointing 
Governor, whichever is sooner. The Governor may remove the 
Attorney General for cause.
    Controversies have arisen in the past because of the 
appointment nature of the position of Attorney General. Public 
concerns revolve around political interference with 
investigations, inefficiency of case work and dismissal of the 
Attorney General without cause.
    In response to the growing number of complaints, a survey 
was conducted to determine an acceptable resolution. It was 
clear that respondents (69%) favored an elected position. The 
survey also asked whether the position should be mandated by 
Congress, or left to the Guam Legislature to create. A slight 
majority of citizens favored local legislation. An amendment to 
Guam's Organic Act is needed to allow for an elected Attorney 
General. This legislation provides a mechanism for elected 
legislators to act on this issue.

Legislative quorum

    Since enactment of Guam's Organic Act, the Guam Legislature 
has been comprised of a 21 member body elected at-large. The 
Organic Act mandates that a legislative quorum shall consist of 
11 members.
    A referendum was held during the 1994 general election to 
reduce the number of seats in the Guam Legislature from 21 to 
15. This change will take effect during the 1998 legislative 
elections.
    H.R. 2370 will align the Organic Act with changes in local 
law and preferences of the electorate. It will replace a 
mandated legislative quorum to a simple majority rather than a 
specified number.

Clarification of legislative powers

    Defined in Guam's Organic Act, the powers of the Guam 
Legislature currently extend to ``subjects of legislation of 
local application.'' In Public Law 85-851, Congress amended the 
Virgin Island's Organic Act to read: ``The legislative 
authority and power of the Virgin Islands shall extend to all 
rightful subjects of legislation not inconsistent with this Act 
or the laws of the United States made applicable to the Virgin 
Islands,'' in response to the Supreme Court case Granville-
Smith v. Granville-Smith [349 U.S. 1, 75 S.Ct. 553 (1955)]. The 
Ninth Circuit Court of Appeals has referenced this discrepancy 
to support its decisions to the effect that Guam has less local 
government than other territories.
    This legislation will provide Guam with a greater measure 
of self-government equal to that of the U.S. Virgin Islands.

                            Committee Action

    H.R. 2370 was introduced on July 31, 1997, by Delegate 
Robert Underwood (D-GU). The bill was referred to the Committee 
on Resources. On October 29, 1997, the Committee held a hearing 
on H.R. 2370 (Printed Hearing 105-78). Appearing before the 
Committee were officials of Guam's judicial, legislative, and 
executive branches, as well as the Administration. Witnesses 
supported self-government for Guam and there were no objections 
to any of the changes to the Organic Act which have been 
approved by the Committee.
    On July 29, 1998, the Committee met to mark up H.R. 2370. 
An amendment in the nature of a substitute to focus the changes 
to the Organic Act of Guam to provisions about the election of 
the Attorney General of Guam, quorum size, and clarification of 
legislative powers was offered by Mr. Underwood and adopted by 
voice. The bill was then ordered favorably reported to the 
House of Representatives by voice vote.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article IV, section 3 of the Constitution of the United 
States grants Congress the authority to enact H.R. 2370.

                        Cost of the Legislation

    Clause 7(a) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 2370. However, clause 7(d) of that Rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, H.R. 
2370 does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 2370.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 
2370 from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 6, 1998.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2370, the Guam 
Organic Act Amendments of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is John R. 
Righter.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 2370--Guam Organic Act Amendments of 1998

    H.R. 2370 would amend the Organic Act of Guam to allow its 
legislature to enact a law providing for the election of the 
island's attorney general, specify that a simple majority of 
legislators qualifies as a quorum, and broaden the extent of 
the legislature's powers. CBO estimates that enacting this bill 
would have no impact on the federal budget. Because H.R. 2370 
would not affect direct spending or receipts, pay-as-you-go 
procedures would not apply to the bill. H.R. 2370 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    The CBO staff contact is John R. Righter. This estimate was 
approved by Robert A. Sunshine, Deputy Assistant Director for 
Budget Analysis.

                    Compliance With Public Law 104-4

    H.R. 2370 contains no unfunded mandates.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

ORGANIC ACT OF GUAM

           *       *       *       *       *       *       *


  Sec. 11. The legislative power of Guam shall extend to all 
rightful subjects of [legislation of local application] 
legislation not inconsistent with the provisions of this Act 
and the laws of the United States applicable to Guam. Taxes and 
assessments on property, internal revenues, sales, license 
fees, and royalties for franchises, privileges, and concessions 
may be imposed for purposes of the government of Guam as may be 
uniformly provided by the Legislature of Guam, and when 
necessary to anticipate taxes and revenues, bonds and other 
obligations may be issued by the government of Guam: Provided, 
however, That no public indebtedness of Guam shall be 
authorized or allowed in excess of 10 per centum of the 
aggregate tax valuation of the property in Guam. Bonds or other 
obligations of the government of Guam payable solely from 
revenues derived from any public improvement or undertaking 
shall not be considered public indebtedness of Guam within the 
meaning of this section. All bonds issued by the government of 
Guam or by its authority shall be exempt, as to principal and 
interest, from taxation by the Government of the United States 
or by the government of Guam, or by any State or Territory or 
any political subdivision thereof, or by the District of 
Columbia. The Secretary of the Interior (hereafter in this 
section referred to as ``Secretary'') is authorized to 
guarantee for purchase by the Federal Financing Bank bonds or 
other obligations of the Guam Power Authority maturing on or 
before December 31, 1978, which shall be issued in order to 
refinance short-term notes due or existing on June 1, 1976 and 
other indebtedness not evidenced by bonds or notes in an 
aggregate amount of not more than $36 million, and such bank, 
in addition to its other powers, is authorized to purchase, 
receive or otherwise acquire these same. The interest rate on 
obligations purchased by the Federal Financing Bank shall be 
not less than a rate determined by the Secretary of the 
Treasury taking into consideration the current average market 
yield on outstanding marketable obligations of the United 
States of comparable maturities, adjusted to the nearest one-
eighth of 1 per centum, plus 1 per centum per annum. The 
Secretary, with the concurrence of the Secretary of the 
Treasury, may extend the guarantee provision of the previous 
sentence until December 31, 1980. The Secretary, upon 
determining that the Guam Power Authority is unable to 
refinance on reasonable terms the obligations purchased by the 
Federal Financing Bank under the fifth sentence of this section 
by December 31, 1980, may, with the concurrence of the 
Secretary of the Treasury, guarantee for purchase by the 
Federal Financing Bank; and such bank is authorized to 
purchase, obligations of the Guam Power Authority issued to 
refinance the principal amount of the obligations guaranteed 
under the fifth sentence of this section. The obligations that 
refinance such principal amount shall mature not later than 
December 31, 1990, and shall bear interest at a rate determined 
in accordance with section 6 of the Federal Financing Bank Act 
(12 U.S.C. 2285). At the request of the Board of Directors of 
the Guam Power Authority for a second refinancing agreement and 
conditioned on the approval of the Government of Guam pursuant 
to the law of Guam, and conditioned on the establishment of an 
independent rate-making authority by the Government of Guam, 
the Secretary may guarantee for purchase by the Federal 
Financing Bank, on or before December 31, 1984, according to an 
agreement that shall provide for--
          (a) substantially equal semiannual installments of 
        principal and interest;

           *       *       *       *       *       *       *

  Sec. 12. The legislature shall be the judge of the selection 
and qualification of its own members. It shall choose from its 
members its own officers, determine its rules and procedure, 
not inconsistent with this Act, and keep a journal. The quorum 
of the legislature shall consist of [eleven] a simple majority 
of its members. No bill shall become a law unless it shall have 
been passed at a meeting, at which a quorum was present, by the 
affirmative vote of a majority of the members present and 
voting, which vote shall be by yeas and nays.

           *       *       *       *       *       *       *

  Sec. 29. (a) * * *

           *       *       *       *       *       *       *

  (d)(1) The Attorney General of Guam shall be the Chief Legal 
Officer of the Government of Guam. At such time as the Office 
of the Attorney General of Guam shall next become vacant, the 
Attorney General of Guam shall be appointed by the Governor of 
Guam with the advice and consent of the legislature, and shall 
serve at the pleasure of the Governor of Guam.
  (2) Instead of an appointed Attorney General, the legislature 
may, by law, provide for the election of the Attorney General 
of Guam by the qualified voters of Guam in general elections 
after 1998 in which the Governor of Guam is elected. The term 
of an elected Attorney General shall be 4 years. The Attorney 
General may be removed by the people of Guam according to the 
procedures specified in section 9-A of this Act or may be 
removed for cause in accordance with procedures established by 
the legislature in law. A vacancy in the office of an elected 
Attorney General shall be filled--
          (A) by appointment by the Governor of Guam if such 
        vacancy occurs less than 6 months before a general 
        election for the Office of Attorney General of Guam; or
          (B) by a special election held no sooner than 3 
        months after such vacancy occurs and no later than 6 
        months before a general election for Attorney General 
        of Guam, and by appointment by the Governor of Guam 
        pending a special election under this subparagraph.

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

    The introduction of the original version of H.R. 2370, the 
Guam Judicial Empowerment Act, stemmed from a need to clarify 
and insulate the judicial branch of Guam's local government 
from interference by the executive or legislative branches of 
the Government of Guam. These Additional Views discuss 
``Section 2. Judicial Authority; Supreme Court of Guam'' found 
in the original version of H.R. 2370.
    A 1977 ruling by the U.S. Supreme Court--Territory of Guam 
v. Olsen, 431 U.S. 195--found Guam's Supreme Court (established 
in 1973 by the 12th Guam Legislature) to be inorganic. In this 
case, the Court held that Guam's Organic Act did not authorize 
the transfer of appellate jurisdiction from the appellate 
division of the District Court of Guam to a locally established 
appellate court.
    The 1984 Omnibus Territories Act was passed by Congress in 
response to the Guam v. Olsen ruling. The Act authorized the 
Guam Legislature to create an appellate court and provided that 
once such a court is established, appellate jurisdiction would 
transfer from the appellate division of the District Court of 
Guam to the newly established appellate court. The Act, 
however, did not provide a structure for a newly created 
judicial system once an appellate court was established. Nor, 
did the Act mention that the responsibility should be left to 
the Guam Legislature.
    In 1992 the 21st Guam Legislature passed Public Law 21-147, 
the Frank G. Lujan Memorial Court Reorganization Act. This Act 
re-created the Supreme Court of Guam to serve as the highest 
appellate court on the island. The author of the Frank G. Lujan 
Memorial Court Reorganization Act has stated that is was the 
intent of the 21st Guam Legislature to make the Supreme Court 
of Guam the highest local court and be vested with those powers 
traditionally held and exercised by the highest court of a 
jurisdiction.
    However, the revival of the Supreme Court of Guam and the 
absence of administrative composition direction in the 1984 
Omnibus Territories Act makes the court subject and subordinate 
to the shifts in the political power structure of the Guam 
Legislature. Public Law 23-86, enacted by the 23rd Guam 
Legislature in 1996, removed the Supreme Court's authority over 
personnel matters within the Judiciary and created two parallel 
court systems. On two other occasions, the 23rd Guam 
Legislature took into consideration two different pieces of 
legislation. Bill No. 494 would have completely removed the 
Supreme Court's authority over the Superior Court and Bill No. 
776 would have rearranged the authority of the Supreme Court 
making it an appellate division of the Superior Court. Another 
example of the Supreme Court's susceptibility to the Guam 
Legislature came recently in February 1998.
    During the course of debate over controversial 
comprehensive solid waste management legislation, a non-germane 
rider removing the Supreme Court's authority was attached. 
Because the subject matter of the rider was also controversial, 
minority Members urged the leadership to allow for a public 
hearing on the issue before attachment. The request was denied, 
the rider was attached and the legislation passed. The Governor 
of Guam allowed a pocket veto of the solid waste management 
legislation and expressed his disapproval of the manner in 
which a controversial rider was attached to a crucial piece of 
legislation. He continued, in his message to the Speaker of the 
Guam Legislature, to reiterate his support for passage of H.R. 
2370 by the U.S. Congress. The actions of the Guam Legislature 
clearly indicate that Guam's third branch of government is 
subordinate and subject to changes by the Guam Legislature. The 
Judiciary is not truly a co-equal, independent branch of 
government.
    Chairman Don Young, Committee on Resources, has expressed 
in a May 11, 1998 letter to Mr. Underwood, that he cannot 
support the proposed measure (Sec. 2) regarding ``Judicial 
Authority; Supreme Court of Guam,'' found in the original 
version of H.R. 2370. Chairman Young states that the change in 
judiciary ``should be done with the support of the Government 
of Guam; or in a locally developed Constitution.'' Chairman 
Young notes that the Committee has, in the past, considered 
changes affecting local self-government of territories based on 
a consensus by the people and their leaders. The consensus is 
usually reflected in resolutions by the local legislature.
    Mr. Allen P. Stayman, Director of the Office of Insular 
Affairs, stated in a May 5, 1998 letter that the Administration 
``has no objection to the passage of such a substitute 
amendment to H.R. 2370.'' The substitute amendment to which Mr. 
Stayman refers to is the improvement of language, as suggested 
by the Administration, for clarification. It is important to 
note that during the October 29, 1997 hearing on H.R. 2370, 
inclusive of Sec. 2 regarding ``Judicial Authority; Supreme 
Court of Guam,'' Mr. Stayman testified that the Administration 
had no objection to the overall concept of H.R. 2370.
    Section 2 of H.R. 2370, received endorsements and support 
from a number of local Guam organizations. The Guam Bar 
Association conducted a survey among its membership to 
determine the amount of support or opposition for H.R. 2370. 
Seventy-two percent (72%) or 27 of 37 attorneys, favored 
defining and affirming the authority of the Supreme Court in 
Guam's Organic Act. Guam's singular newspaper publication, the 
Pacific Daily News, also endorsed the passage of the Guam 
Judicial Empowerment Act in a February 10, 1998 editorial. They 
stated that H.R. 2370, ``is emergency legislation and can't 
wait for routine handling. It must get prompt action in 
Washington before Guam's system of justice falls victim to arm-
twisting from special interest groups.''
    A significant endorsement for the original version of H.R. 
2370 came from a February 17, 1998 letter from the Conference 
of Chief Justices. The Conference of Chief Justices is 
comprised of members who hold the highest judicial officers of 
each state of the United States, the District of Columbia, 
Puerto Rico, Guam and other territories. In their letter, they 
express their strong support for H.R. 2370 ``to assure by 
legislation the independence of its judiciary and to maintain 
its judicial branch as a separate and co-equal branch of 
government.''
    Currently, Guam's judiciary is not a co-equal branch of 
government. It's court system does not reflect court systems 
existing in the United States. This predicament can only be 
corrected by amending the Organic Act of Guam to enact Sec. 2 
of H.R. 2370 regarding the judicial authority of the Supreme 
Court of Guam. The Committee on Resources needs to address this 
important issue in the near future.

                                   Robert A. Underwood.
                                   George Miller.

                                
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