'Equitable modification' question in to be  considered in mandatory arbitration law

EQUITABLE MODIFICATION: The Guam Judicial Center, which houses the Guam Supreme Court, in Hagåtña is shown in this file photo. The District Court of Guam has asked the Guam Supreme Court to answer whether failure to comply with Guam's Medical Malpractice Mandatory Arbitration Act is "equitably excused" when an indigent party cannot afford the non-administrative fees of any organization authorized to arbitrate under Guam law, and no alternate means of completing arbitration is available. Post file photo

The District Court of Guam has asked the Guam Supreme Court to answer whether failure to comply with Guam's Medical Malpractice Mandatory Arbitration Act is "equitably excused" when an indigent party cannot afford the non-administrative fees of any organization authorized to arbitrate under Guam law, and no alternate means of completing arbitration is available. 

The request comes as the federal court tackles two complaints - addressed through a limited consolidation - that seek judgment stating that the local arbitration law violates due process and equal protection clauses of the 14th Amendment. 

The District Court's request also presents some consolation for those challenging the local arbitration law, which was recently upheld twice at the Superior Court of Guam. 

Guam's arbitration law mandates the out-of-court procedure before malpractice claims can be brought to court. 

Guam Orthopedic Clinic is named as a defendant in both federal complaints while Guam Regional Medical City is included in one case. The defendants seek dismissal arguing that the plaintiffs failed to follow the arbitration rule.

The plaintiffs admit they did not arbitrate but asked the court not to enforce the law on grounds that it is unconstitutional. 

The law's critics claim that mandatory arbitration bars access to the courts behind costly arbitration fees.

The plaintiffs in both cases claim that they don't have the financial ability to proceed with arbitration. Whether they can or can't pay hasn't been proven yet, but that isn't important at this stage of the case, according to the District Court order.

Chief Judge Ramona Manglona of the U.S. District Court of the CNMI, who has been designated to hear the case, stated that arguments on both sides are premature. 

"The parties have all assumed that plaintiffs are subject to compulsory arbitration unless the statute is struck down. Yet, that is not an obvious conclusion to make. On the contrary, it is unclear whether the statute’s arbitration requirement applies to plaintiffs. Whether it applies turns on a question of statutory interpretation that Guam’s judiciary has not addressed, much less resolved. Consequently, before continuing further with this case, this court seeks guidance from the Guam Supreme Court," Manglona stated in her order certifying the question to the Supreme Court. 

While the law states that a plaintiff shall pay half the cost of arbitration, it does not explain what to do when an indigent plaintiff is incapable of paying, the judge added. 

Both the defendants and the plaintiffs, using an "extremely literal reading" of the law, believe that Guam's arbitration mandate covers situations where compliance is impossible but disagree on whether that renders the statute unconstitutional, Manglona wrote.

However, the judge considered the arbitration law a "claim-processing rule," which lends it to possible "equitable modification," rather than strict enforcement as a jurisdictional prerequisite for the court.

Case law has determined that equity sometimes warrants excusing a party's failure to comply with a claim-processing rule, according to Manglona. 

"It would be manifestly unfair to enforce the statutory requirement against a person financially incapable of arbitrating. Doing so would have the absurd result of prohibiting the poor from recovering on a claim they might be otherwise entitled to. It would likewise shield the health care industry from ever owing liability to the underprivileged," the judge wrote. 

There is no evidence that the Guam Legislature enacted the decades-old arbitration law with such a "draconian purpose" in mind, Manglona added. She further stated that interpreting the mandatory arbitration law in a way that does not arbitrarily discriminate on the basis of wealth may also avoid difficult the constitutional issues raised.

But equitable modification of the arbitration mandate is ultimately a question of Guam law - one yet to be examined by the courts. 

"Accordingly, rather than guess how Guam’s judiciary would interpret the MMMAA under these circumstances, the court prefers to certify the question to the Guam Supreme Court," Manglona wrote. 

At the local court level, the arbitration act has managed to survive multiple challenges in the Superior Court.

The most recent decision came from Superior Court Judge Maria Cenzon, whom President Donald Trump is eyeing to serve on the bench at the District Court of Guam. She determined that the law does not violate constitutional rights and dismissed the matter without prejudice.

Her ruling followed a similar decision in August, when Superior Court Judge Arthur Barcinas ordered to stay a case filed by the parents of the late 5-year-old boy Asher Lubofsky in order to proceed with arbitration.

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