Aguon-Schulte v. Guam Election Com'n.

• Citation: 469 F.3d 1236
• Decision Date: 28 November 2006
• Docket Number: No. 05-16067.,05-16067.
• Parties: Lourdes P. AGUON-SCHULTE; Jay Merrill, on his own behalf and on behalf of all others similarly situated voters desirous of casting a vote in favor of Proposal A at a fair and legal election, Plaintiffs-Appellees, v. GUAM ELECTION COMMISSION; Gerald A. Taitano, in his official capacity as Executive Director of the Guam Election Commission; Felix P. Camacho, in his official capacity as Governor of Guam; I Mina' Bente Siete Na Liheslaturan Guahan (The 27th Guam Legislature), Defendants-Appellees, v. Attorney General of Guam, Plaintiff-intervenor-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1236

469 F.3d 1236

Lourdes P. AGUON-SCHULTE; Jay Merrill, on his own behalf and on behalf of all others similarly situated voters desirous of casting a vote in favor of Proposal A at a fair and legal election, Plaintiffs-Appellees, v. GUAM ELECTION COMMISSION; Gerald A. Taitano, in his official capacity as Executive Director of the Guam Election Commission; Felix P. Camacho, in his official capacity as Governor of Guam; I Mina' Bente Siete Na Liheslaturan Guahan (The 27th Guam Legislature), Defendants-Appellees, v. Attorney General of Guam, Plaintiff-intervenor-Appellant.

No. 05-16067.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2006.

Filed November 28, 2006.

Robert M. Weinberg (brief), Assistant Attorney General and Douglas B. Moylan (argued), Attorney General, Territory of Guam, Hagatna, Guam, for the appellant.

Theodore S. Christopher (brief), and Cesar Cabot (argued), Cabot Mantanona LLP, Tamuning Guam, for defendants-appellees, Guam Election Commission & Gerald A. Taitano.

Rodney J. Jacob (brief) and Daniel M. Benjamin (argued), Calvo & Clark LLP, Tamuning, Guam, for Governor Felix P. Camacho.

Appeal from the United States District Court for the District of Guam; David O. Carter, District Judge, Presiding. D.C. Nos. CV-04-00045-DOC, CV-04-00046-DOC.

Before B. FLETCHER, PREGERSON, and CANBY, Circuit Judges.

PREGERSON, Circuit Judge.

This case involves an appeal from a district court's order denying a request to strike outside counsel and remanding the case to the Guam Superior Court for failure to join all defendants in the removal action. Generally, a district court's order denying a motion to disqualify counsel is not appealable under 28 U.S.C. § 1291 prior to final judgment in the underlying litigation. Further, remand orders issued under 28 U.S.C. § 1447(c) and invoking the grounds specified therein that removal was improvident and without jurisdiction are usually immune from review under § 1447(d). Accordingly, we must determine whether we have jurisdiction to review this case.

We have provisional jurisdiction under 28 U.S.C. § 1291 and we have jurisdiction to determine whether we have jurisdiction to hear the case. See United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). For the reasons set forth below, we find that we lack jurisdiction to review this case.

I. Factual Background

The events surrounding this action began twenty months ago with a general election scheduled for November 2, 2004. Included on the ballot was Proposal A, an initiative to legalize gambling on Guam. Guam election law required that the ballot pamphlets mailed to registered voters contain, among other things, a complete copy of any measure to be submitted to the voters. See Guam Code Ann. tit. 3 § 17509. Because the full text of Proposal A contained eighty pages of information, the pamphlet distributed by the Guam Election Commission ("GEC") included only the title of Proposal A and a summary; it did not include the full text.

Plaintiffs Lourdes P. Aguon-Schulte and Jay Merrill filed separate complaints, on October 18, 2004, and October 25, 2004, respectively, in the Superior Court of Guam. The complaints name as defendants the GEC, Gerald Taitano (Executive Director of the GEC), the 27th Guam Legislature (I Mina Bente Siete Na Liheslaturan Guahan), and Governor Felix Camacho (collectively "Defendants"). Plaintiffs asserted that the ballot pamphlets were legally defective. They sought declaratory and injunctive relief and an order from the court requiring the Governor to hold a special election on Proposal A.

On October 25, 2004, the Legislature passed Substitute Bill 374, to cure compliance defects with § 17509 by recognizing that the ballot pamphlet for Proposal A need not contain a complete copy of the initiative. On October 27, 2004, the Governor signed Public Law 27-108 which promulgated these provisions of Bill 374.

On October 26, 2004, Attorney General Douglas Moylan filed a Notice of Removal of both cases to the District of Guam. In his removal petition, the Attorney General stated that removal was proper because Plaintiffs complained of violations of their right to vote, as protected by the First and Fourteenth Amendments, and specifically their right to vote for initiatives, a right protected by the Organic Act of Guam, a federal statute. The Attorney General stated that as the Chief Legal Officer of the Government of Guam, he represented all Defendants. At the same time, the Attorney General lodged with the District Court a Stipulation and Order for a Preliminary Injunction in both cases to prevent Proposal A from being included in the November 2 election. The Stipulation was signed by Plaintiffs' counsel and the Attorney General. The Attorney General purported to sign the Stipulation on behalf of all Defendants.

On October 28, 2004, the Legislature, the Governor, and Taitano and the GEC, filed three separate entries of appearance. Each was represented by outside counsel. On the same day, Defendants lodged an objection to the proposed stipulation and order for preliminary injunction executed between Plaintiffs and the Attorney General. On October 29, 2004, the Attorney General filed motions to strike the appearances of the various outside counsel. On the same day, the district court denied Plaintiffs' requests for a preliminary injunction. On or about November 22, 2004, the Legislature moved the district court to remand the cases to the Guam Superior Court, arguing that the Legislature had not consented to the removal of the cases to district court. The Governor, Taitano, and the GEC joined the motion stating that they too did not consent to the removal of the actions to the district court.¹ The cases were consolidated on November 23, 2004.

II. Procedural History

On February 18, 2005, Magistrate Judge Manibusan, Jr. conducted a hearing on the Attorney General's motions to strike the appearances and pleadings of private counsel and Defendants' motions to remand the actions to the Superior Court of Guam. At the end of the hearing the magistrate judge took the motions under advisement and, on March 16, 2005, he issued his Report and Recommendation ("R & R") to the district court. In his R & R, the magistrate judge recommended that the district court deny the Attorney General's motions to strike the appearances of Defendants' private counsel. He further recommended that the district court grant Defendants' motion to remand the cases to the Superior Court of Guam. The Attorney General filed objections to the R & R on March 29, 2005. On May 10, 2005, District Judge David O. Carter adopted the R & R in full and ordered a remand to the Guam Superior Court.

On June 17, 2005, the Attorney General filed a timely notice of appeal. The Attorney General contends that the district court erred when it adopted the R & R because Guam's Attorney General has the sole authority to set legal policy for the Government of Guam, its agencies, instrumentalities, and officials, and to control litigation on their behalf, despite protest by the public officials that he represents.² For the reasons set forth below, we find that we lack jurisdiction to review this case.

III. Standard of Review

The existence of subject matter jurisdiction is a question of law reviewed de novo. See United States v. Peninsula Commc'ns, Inc., 287 F.3d 832, 836 (9th Cir.2002). A district court's findings of fact relevant to its determination of subject matter jurisdiction are reviewed for clear error. See id. As mentioned above, we have jurisdiction to determine whether we have jurisdiction to hear the case. See Ruiz, 536 U.S. at 628, 122 S.Ct. 2450.

IV. Discussion

Defendants contend that this court lacks jurisdiction to review this case because the Attorney General is appealing an unreviewable remand order and an order that is not final—the district court's denial of his motions to strike the appearances of Defendants' private counsel. We agree.

As Defendants correctly noted, the district court's order is based, in part, on the denial of the Attorney General's motions to strike the appearances of private counsel. "[A] district court's order denying a motion to disqualify counsel is not appealable under [28 U.S.C.] § 1291 prior to final judgment in the underlying litigation." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); see also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) ("We hold that orders disqualifying counsel in civil cases, like orders disqualifying counsel in criminal cases and orders denying a motion to disqualify in civil cases, are not collateral orders subject to appeal as `final judgments' within the meaning of 28 U.S.C. § 1291."). Because a motion to strike counsel is unreviewable prior to final judgment, we lack jurisdiction to review this portion of the district court's order.³

The district court's order is also based on the Attorney General's failure to join all Defendants in the removal action. Section 1447(d) states that, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d).⁴ Despite this broad prohibition, the Supreme Court has held that § 1447(d) must be read together with § 1447(c) such that § 1447(d) precludes review only of remands made pursuant to a ground enumerated in § 1447(c). See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) ("[O]nly remand orders issued under § 1447(c) and invoking the grounds specified therein that removal was improvident and without jurisdiction are immune from review under § 1447(d)."), abrogated on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Bennett v. Liberty Nat'l Fire Ins. Co., 968 F.2d 969, 970 (9th Cir.1992) (...