Today’s Argument in Moylan v. Camacho

By Amy Howe
on Jan 8, 2007 at 8:29 am

Although its caption suggests a prize fight, when the Supreme Court hears oral arguments tomorrow in No. 06-116, Moylan v. Camacho, it will become the third court to weigh in on a long-running dispute between the Attorney General and Governor of Guam regarding a fairly esoteric issue: the meaning of the phrase “aggregate tax value” in the Organic Act of Guam, which serves as that territory’s constitution. First, however, the Court must consider an additional issue that it asked the parties to brief: whether the Attorney General’s petition was timely filed and it thus even has jurisdiction to consider the merits of the Attorney General’s petition.

Both parties will be represented at the Supreme Court by legal heavyweights. Former Solicitor General Seth Waxman of Wilmer Hale will argue on behalf of petitioner Douglas Moylan, while former Assistant to the Solicitor General Beth Brinkmann – now at Morrison & Foerster – will argue on behalf of respondent Felix Camacho.

Section 11 of the Organic Act of Guam provides, in relevant part, that Guam’s government may issue “bonds and other obligations” “when necessary to anticipate taxes and revenues.” In the same section, however, Congress limited Guam’s public debt to ten percent of the “aggregate tax valuation of the property in Guam.” Under Guam law, the territory’s governor may not execute any contracts on the government’s behalf without the approval of the territory’s attorney general.

The dispute now before the Court has its roots back in 2003, when Guam’s legislature authorized the governor to issue approximately $418 million in bonds. Petitioner Douglas Moylan declined to approve the issuance of the bonds. He explained, inter alia, that because the Organic Act’s use of the phrase “aggregate tax valuation” should be construed as referring to property’s assessed value (which, under Guam law, is fixed at thirty-five percent of appraised value), the newly authorized bonds would result in the territory’s indebtedness exceeding the ten-percent limit established by Section 11 of the Organic Act. Guam’s governor, respondent Camacho, disagreed and filed an original declaratory judgment action in the Supreme Court of Guam, which ruled in his favor. It held that the phrase “aggregate tax valuation” referred to property’s full, appraised value rather than the assessed value used for taxation.

Following the then-current version of 48 U.S.C. 1424-2, petitioner sought review of the Guam Supreme Court’s decision by filing a writ of certiorari in the Ninth Circuit, which granted his petition and heard oral arguments in May 2004. In October 2004, while petitioner’s case was still pending in the Ninth Circuit, Congress amended Section 1424-2 to provide that the Supreme Court, rather than the Ninth Circuit, has certiorari jurisdiction over decisions of the Guam Supreme Court. In March 2006, the Ninth Circuit – following an earlier determination that the amendment to Section 1424-2 applied to pending cases – dismissed petitioner’s appeal for lack of jurisdiction. After receiving an extension, petitioner then filed a petition for certiorari with the Supreme Court in July 2006.

Petitioner first contends that his time to file a petition for a writ of certiorari to the Supreme Court should be regarded as having been tolled while his earlier petition to the Ninth Circuit was pending and while the merits of his case were before that court, as those two events “effectively suspended the finality of the Guam Supreme Court’s judgment.” Any other result, petitioner explains, would penalize him for proceeding in conformance with the then-existing law and, moreover, would “prevent review of the Guam Supreme Court’s decision by any Article III court.” Respondent counters that the ninety-day time limit to file a cert. petition is jurisdictional. In his view, when Congress amended Section 1424-2 to shift cert. jurisdiction from the Ninth Circuit to the Supreme Court, petitioner should have either filed a petition for certiorari with the U.S. Supreme Court or sought a remand to the Guam Supreme Court.

Addressing the merits of his case, petitioner contends that construing the phrase “aggregate tax valuation” to mean “actual market value” is contrary to the plain language of the statute because – among other things – it renders the word “tax” superfluous. Such a construction is further contrary to the purpose of the debt-limitation provision. Respondent counters that its construction (as well as that of the Guam Supreme Court) is in fact the one based on the plain language of the statute; by contrast, in the Virgin Islands Organic Act, Congress explicitly referred to “assessed valuation” rather than “tax valuation.”