DFS Guam L.P. v. A.B. Won Pat Int'l Airport Auth. (In re A.B. Won Pat Int'l Airport Auth.), (2019)

• Docket Number: Supreme Court Case No.: CVA17-030,Supreme Court Case No.: CVA18-001
• Decision Date: 12 June 2019
• Citation: 2019 Guam 6
• Parties: IN RE THE A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM, Petitioner-Appellee. DFS GUAM L.P., Plaintiff-Appellee/Cross-Appellant, v. THE A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM, Defendant-Appellant/Cross-Appellee.
• Court: Guam Supreme Court

2019 Guam 6

IN RE THE A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM, Petitioner-Appellee.

DFS GUAM L.P., Plaintiff-Appellee/Cross-Appellant, v. THE A.B. WON PAT INTERNATIONAL

AIRPORT AUTHORITY, GUAM, Defendant-Appellant/Cross-Appellee.

Supreme Court Case No.: CVA17-030 Supreme Court Case No.: CVA18-001

SUPREME COURT OF GUAM

Argued and submitted: October 11, 2018

Argued and submitted: October 12, 2018

June 12, 2019

Superior Court Case No.: SP0102-15

Superior Court Case No.: CV0307-16

OPINION

Appeal from the Superior Court of Guam

Argued and submitted on October 11, 2018 and October 12, 2018

Hagåtña, Guam

Appearing for DFS Guam L.P.:

Jay P. Srinivasan, Esq. (argued)

Maurice M. Suh, Esq.

Daniel Weiss, Esq.

Gibson, Dunn & Crutcher LLP

333 South Grand Ave.

Los Angeles, CA 90071

G. Patrick Civille, Esq.

Joyce C.H. Tang, Esq.

Civille & Tang, PLLC

330 Hernan Cortez Ave., Ste. 200

Hagåtña, GU 96910

Jehan'Ad G. Martinez, Esq.

William J. Blair, Esq.

Blair Sterling Johnson & Martinez, PC

DNA Bldg.

238 Archbishop F.C. Flores St., Ste. 1008

Hagåtña, GU 96910

Appearing for A.B. Won Pat International

Airport Authority, Guam:

Kathleen V. Fisher, Esq. (argued)

Jay D. Trickett, Esq.

Genevieve P. Rapadas, Esq.

Calvo Fisher & Jacob LLP

259 Martyr St., Ste. 100

Hagåtña, GU 96910 BEFORE: KATHERINE A. MARAMAN, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; JOSEPH N. CAMACHO, Justice Pro Tempore.

CARBULLIDO, J.:

[1] Before the court are two separately-filed appeals that involve the same parties but arise from different underlying cases in the Superior Court. In the first appeal, Supreme Court Case No. CVA17-030, Intervenor-Appellant DFS Guam L.P. ("DFS") appeals a final order denying DFS's motion to unseal certain transcripts of executive sessions conducted by Petitioner-Appellee A.B. Won Pat International Airport Authority, Guam ("GIAA"). In the second appeal, Supreme Court Case No. CVA18-001, GIAA challenges the grant of partial summary judgment in favor of DFS on DFS's claims arising under the Sunshine Reform Act of 1999 ("the Sunshine Act") and the Open Government Law ("OGL"). DFS cross-appeals from the portion of the Superior Court's decision and order that partially denied its motion for summary judgment.

[2] Following oral argument, we granted GIAA's motion to consolidate, solely to issue this joint Opinion. We hold that 7 GCA § 8117(c)(7) does not grant the trial court the authority to re-seal an executive session transcript once the initial statutory seal has lapsed without a government agency moving to further seal the transcript. We further hold that executive session transcripts are subject to the Sunshine Act and Open Government Law, which are not in irreconcilable conflict. The Sunshine Act permits GIAA to withhold the executive session transcripts from disclosure until the litigation between GIAA and DFS has concluded. We remand both cases for further proceedings not inconsistent with this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] The genesis of both cases pending on appeal is a disputed procurement contract that GIAA awarded in the Spring of 2013. See DFS Guam L.P. v. A.B. Won Pat Int'l Airport Auth., 2014 Guam 12 ¶ 3. Shortly following this procurement award, the Board of Directors of GIAA engaged in the first of several dozen closed-door executive sessions to discuss the threatened or actual litigation initiated by DFS. Under the OGL, GIAA created verbatim transcripts of these closed-door executive sessions.

[4] On July 7, 2015, DFS sent GIAA a Sunshine Act request demanding various documents, including transcripts of executive sessions in which the procurement-related litigation was discussed with GIAA's attorneys. GIAA denied DFS's Sunshine Act request regarding the executive session transcripts on the basis that such documents were exempt from disclosure because they were privileged or related to pending litigation.

[5] Shortly after DFS's first Sunshine Act request, GIAA filed a non-adversarial Petition under Superior Court Case No. SP0102-15, seeking to seal certain executive session transcripts under the OGL, 5 GCA §§ 8101-8116 ("the Sealing Litigation"). See CVA17-030, RA, tab 1 (Pet., Aug. 6, 2015). GIAA sought to seal twenty-eight transcripts, dating from March 4, 2010, to January 29, 2015. Of these twenty-eight transcripts, thirteen related to matters concerning DFS and its challenge to the procurement award. After reviewing the transcripts in camera, the Superior Court issued an order sealing all twenty-eight transcripts for six months. See CVA17-030, RA, tab 7 (Order, Aug. 13, 2015). Several weeks later, GIAA supplemented its submission and sought sealing two additional executive session transcripts, both of which also concerned DFS-related matters. Again, the Superior Court issued an order sealing these transcripts for six months. See CVA17-030, RA, tab 9 (Order, Aug. 28, 2015).

[6] Throughout the next year and a half, GIAA filed several additional supplemental petitions in which it requested that executive session transcripts be sealed or that the court extend one of its previous sealing orders. The Superior Court in the Sealing Litigation granted some of GIAA's requests. See CVA17-030, RA, tab 12 (Order, Dec. 15, 2015); CVA17-030, RA, tab 18 (Order, Mar. 14, 2016).

[7] As the Sealing Litigation was pending, DFS sent two additional Sunshine Act requests to GIAA seeking disclosure of executive session transcripts. In response, GIAA again denied these requests for transcripts on the basis that they were exempt from disclosure because they consisted of privileged attorney-client communications or were otherwise protected by law.

[8] DFS sued GIAA under Superior Court Case No. CV0307-16, asserting claims under the OGL and the Sunshine Act and seeking, among other things, to compel GIAA to disclose transcripts of certain executive sessions ("the Sunshine Act Litigation"). See CVA18-001, RA, tab 1 (Compl., Apr. 11, 2016); see also CVA18-001, RA, tab 20 (First Am. Compl., June 9, 2016). This case was heard by a judge different than the judge overseeing the Sealing Litigation. Both parties moved for summary judgment or partial summary judgment in the Sunshine Act Litigation. DFS argued for partial summary judgment that many of the executive session transcripts had become public records by operation of law under section 8111(c) of the OGL, and GIAA was therefore required to disclose these transcripts under the Sunshine Act. See CVA18-001, RA, tab 75 at 1-2 (DFS's Mot. Partial Summ. J., Mar. 8, 2017). In its motion for summary judgment, GIAA argued, among other things, that DFS was prohibited from obtaining the transcripts because they had been sealed by court order in the Sealing Litigation. See CVA18-001, RA, tab 68 (GIAA's Mot. Summ. J., Mar. 8, 2017).

[9] The Superior Court resolved the dueling motions for summary judgment in the Sunshine Act Litigation by Decision and Order. CVA18-001, RA, tab 85 (Dec. & Order, June 26, 2017). Here, the court found that "Section 8111 of the OGL provides a clear exception to the Sunshine Act's limitation on the right to inspect records pertaining to pending litigation." Id. at 11. In the trial court's view, "to interpret Section 10108 of the Sunshine Act to prohibit the disclosure of all documents pertaining to pending litigation or containing attorney-client discussions . . . would render Section 8111 of the OGL meaningless." Id. The court further reasoned that because the six-month window for sealing under 5 GCA § 8111(c) had run by the time GIAA sought to seal certain transcripts, those transcripts were public documents by operation of law. See id. at 12. But because these transcripts were subsequently re-sealed as part of the Sealing Litigation, they were no longer public documents subject to disclosure. See id. at 12-13. On this basis, the court found that GIAA violated the Sunshine Act by failing to disclose the documents during the period in which they were public documents. See id. at 13. But because these documents were no longer public documents because of the re-sealing in the Sealing Litigation, the court also found it could not grant DFS the injunctive relief it requested. See id.

[10] Following the court's grant of partial summary judgment, DFS moved to enter judgment, to voluntarily dismiss certain of its remaining claims, and for additional relief. Judgment was entered in the Sunshine Act Litigation on January 10, 2018. Both GIAA's Notice of Appeal and DFS's Notice of Cross-Appeal timely followed, which resulted in the appeal filed under Supreme Court Case No. CVA18-001.

[11] In addition to seeking the entry of judgment in the Sunshine Act Litigation, DFS sought to intervene in the Sealing Litigation and moved to unseal a number of transcripts placed under a continuing seal by the Superior Court. See CVA17-030, RA, tab 36 (Mot. Intervene & Unseal Trs., July 26, 2018). The Superior Court granted DFS's motion to intervene in the Sealing Litigation but denied that portion seeking to unseal certain of the executive session transcripts ("the November 2017 Order"). See CVA17-030, RA, tab 61 (Dec. & Order, Nov. 9, 2017). The court rejected DFS's argument that once executive session transcripts had become public under 5 GCA § 8111(c), the court was without authority under that statute to re-seal them. See id. at 10. DFS timely filed a notice of appeal of this final order in the Sealing Litigation, which gave rise to the appeal filed under Supreme Court Case No. CVA17-030. GIAA did not cross-appeal from the court's order granting DFS permission to intervene.

[12] After hearing oral arguments on each appeal separately, we consolidated these appeals to issue this joint Opinion.

II. JURISDICTION

[13] We have appellate jurisdiction over both final orders and final judgments entered in the Superior Court of Guam. See 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-20 (2019)); 7 GCA §§ 3107, 3108(a) (2005).

III. STANDARD OF REVIEW

[14] We review both questions of standing and statutory...