Guam v. Guerrero

• Decision Date: 28 May 2002
• Docket Number: No. 00-71247.,00-71247.
• Parties: People of GUAM, Petitioner, v. Benny Toves GUERRERO, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

290 F.3d 1210

People of GUAM, Petitioner, v. Benny Toves GUERRERO, Respondent.

No. 00-71247.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2001.

Filed May 28, 2002.

COPYRIGHT MATERIAL OMITTED

Tricia R.S. Ada, argued the cause for petitioner; Robert H. Kono, Angela M. Borzachillo, Office of the Guam Attorney General, Hagätña, Guam, were on the briefs.

Nelson Tebbe, ACLU Drug Litigation Project, New Haven, CT, argued the cause for respondent; Graham Boyd, ACLU Drug Policy Litigation Project, New Haven, CT, and Daniel N. Abrahamson, The Lindesmith Center, San Francisco, CA, were on the brief.

Julie M. Carpenter and Nory Miller, Jenner & Block, Washington, DC, were on the brief for amicus curiae The DKT Liberty Project, Dr. John P. Homiak, and Prof. Carole D. Yawney.

David T. Goldberg, New York, N-Y, was on the brief for amicus curiae Senator Vincente C. Pangelinan and Senator Mark C. Charaurous.

On Petition for Writ of Certiorari to the Supreme Court of the Territory of Guam. Supreme Court: CRA-99-025 Superior Court: No. CF0001-91.

Before BEEZER, THOMPSON, and O'SCANNLAIN, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether the Supreme Court of Guam may interpret the Territory of Guam's "Bill of Rights," which is a federal statute, to allow greater religious freedom than that provided by the First Amendment to the federal Constitution.

I

Police officers of the Territory of Guam arrested Benny Toves Guerrero¹ at the Guam International Airport after they found five ounces of marijuana and ten grams of marijuana seeds in his belongings. He was duly indicted under Guam's statutes criminalizing the importation of controlled substances. 9 Guam Code Ann. §§ 67.23(d)(10), 67.89(a), 80.33.7. Guerrero moved to dismiss his indictment on the ground that the statutes violated his right freely to exercise his religion — Rastafarianism — under the Organic Act of Guam ("Organic Act"), 48 U.S.C. §§ 1421 et seq., and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb et seq.

The Superior Court of Guam found, and the government does not dispute, that Rastafarianism is a legitimate religion² of which Guerrero is a legitimate member. People v. Guerrero, No. CF0001-91, at 4 (Sup.Ct. Guam July 23, 1999). It also found that marijuana use is sacramental in the practice of that religion. Id. Using RFRA's standard — namely, a law of general applicability that substantially burdens the free exercise of religion is invalid unless the government demonstrates that the law is the least restrictive means of vindicating a compelling government interest — the trial court found that the government had alleged neither a compelling interest nor that its drug laws were the least restrictive means of carrying out their purpose. Id. at 5-6. As such, the trial court held that the importation statute, as applied to Guerrero, violated both RFRA³ and the Free Exercise Clause of the Organic Act, 48 U.S.C. § 1421b(a).

The Supreme Court of Guam affirmed based solely on its interpretation of the Organic Act. While it discussed whether RFRA was constitutional as applied to Guam as a federal instrumentality, its decision was based on its own interpretation of § 1421b(a). People v. Guerrero, 2000 Guam 26, 2000 WL 1299635, at *6 (2000). The Supreme Court of Guam construed the Organic Act's Free Exercise Clause, § 1421b(a), as providing the level of protection found in RFRA and prior U.S. Supreme Court decisions:⁴ "the government must demonstrate that some compelling state interest justifies the infringement [that substantially burdens religious exercise] and that the least restrictive means are used to accomplish that objective." Id. at *3.

Applying this compelling interest test, the Supreme Court of Guam held that Guam's controlled substance statute substantially burdened Guerrero's right freely to exercise his religion. Id. at *6. It went on to conclude that the government had not demonstrated that its statute was necessary for the pursuit of a compelling state interest: "The issue then is whether some compelling government interest exists and whether the least restrictive means of obtaining that objective are used. No evidence on this score was presented .... [T]his court is unable to make the evaluation of whether a compelling state interest is embodied in the instant statute or whether that interest is achieved by the least restrictive means." Id.

The Guam Supreme Court thus affirmed the trial court and held that Guam's prosecution of Guerrero violated his right freely to exercise his religion as guaranteed by § 1421b(a) of the Organic Act. We granted Guam's timely petition for a writ of certiorari pursuant to 48 U.S.C. § 1424-2.

II

Because we are reviewing a decision of a territorial supreme court that interpreted a federal statute, our standard of review is de novo. Gutierrez v. Pangelinan, 276 F.3d 539, 546-47 (9th Cir.2002). We recognize that on matters of local concern, appellate courts apply a highly deferential standard of review. See, e.g., De Castro v. Board of Comm'rs, 322 U.S. 451, 454, 64 S.Ct. 1121, 88 L.Ed. 1384 (1944) (declining to overrule a territorial court on matters of local concern absent "clear" or "manifest" error or an "inescapably wrong" interpretation) (quoting Sancho v. Texas Co., 308 U.S. 463, 471, 60 S.Ct. 349, 84 L.Ed. 401 (1940)); EIE Guam Corp. v. Supreme Court of Guam, 191 F.3d 1123, 1127 (9th Cir.1999) ("Although Congress certainly has given us jurisdiction to review issues of local Guam law, we hesitate to use this authority where, on the merits, the Guam Supreme Court appears to have construed a Guam statute reasonably and fairly."). Nonetheless, despite the fact that we are dealing with Guam's "Bill of Rights," we cannot ignore the fact that § 1421b(a) is a federal statute dealing with an issue of federal constitutional import, not a local law. As such, we employ a de novo standard of review.

III

The United States formally acquired Guam from Spain in 1899 after the Spanish-American War, and, with the exception of a three-year Japanese occupation during World War II, it has remained in the United States's possession since that time. Until 1950, Guam was controlled by the U.S. Navy, with vast authority wielded by an appointed governor.

Guam remains an unincorporated territory of the United States, 48 U.S.C. § 1421a, subject to the plenary power of Congress. Guam v. Okada, 694 F.2d 565, 568 (9th Cir.1982).⁵ Congress has the power to legislate directly for Guam or to establish a government for Guam subject to congressional control, and except as Congress may determine, Guam has no inherent right to govern itself. Id. With the exception of certain "fundamental rights," federal constitutional rights do not automatically apply to unincorporated territories. Balzac v. Porto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Dorr v. United States, 195 U.S. 138, 147, 24 S.Ct. 808, 49 L.Ed. 128 (1904). An act of Congress is required to extend constitutional rights to the inhabitants of unincorporated territories. Pugh v. United States, 212 F.2d 761, 762-63 (9th Cir. 1954).

In response to renewed petitions of Guam's inhabitants, Congress enacted the Organic Act of 1950, 48 U.S.C. § 1421 et seq., which, inter alia, established a "Bill of Rights" modeled after the Bill of Rights in the federal Constitution, 48 U.S.C. § 1421b.⁶ The language of the Free Exercise Clause of the Organic Act, 48 U.S.C. § 1421b(a), is virtually identical to its federal counterpart: "No law shall be enacted in Guam respecting an establishment of religion or prohibiting the free exercise thereof...." Id.

Later, in 1968, Congress enacted 48 U.S.C. § 1421b(u), known as the Mink Amendment, which extended certain constitutional rights to Guam "to the extent that they [had] not been previously extended" and provided that those rights "shall have the same force and effect [in Guam] as in the United States or in any State of the United States." Id. (emphasis added).⁷

The thorny question we must decide is whether § 1421b(a) is analogous to the free exercise provisions found in many state constitutions that state supreme courts are free to interpret as providing more protection than that given by the federal constitution. Indeed, many states have in fact provided more protection to religious freedom, even when their state free exercise clause is similarly or identically worded to its federal counterpart.⁸ Therefore, we must decide whether the rights established in the federal Constitution are a ceiling beyond which the Supreme Court of Guam cannot exceed when it is interpreting its "Bill of Rights."

A

The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. In Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), Smith was a member of the Native American Church who ingested peyote for sacramental purposes at a church ceremony. As a result, Smith's employer, a private drug rehabilitation organization, fired him. When he applied for unemployment compensation, the state agency denied his application because a state statute disqualified individuals who had been fired for work-related "misconduct." Id. at 874, 110 S.Ct. 1595. Smith sued, arguing that the denial of unemployment compensation burdened his First Amendment right to exercise his religion freely. The Supreme Court declined to apply Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), which required laws that substantially burden the free exercise of religion to be supported by a compelling government interest, and instead adopted a "neutral rules of general applicability" test. Id. at 884, 110 S.Ct. 1595. The Court held that neutral, generally applicable laws may be applied to religious...