Game room operators seek due process

GAMING MACHINES: The Attorney General of Guam continues to argue that it is not legal for the government of Guam to license gaming devices, while owners of the devices call for due process. Post file photo

Attorneys on both sides of a dispute over the legitimacy of licenses and rules for electronic gaming devices presented arguments to the Guam Supreme Court on Wednesday.

Several legal issues were debated, including whether subsequent laws enacted through the island’s lawmaking body “cured” or remedied deficiencies in previous statutes. Legislation entered into the record shows these devices being a subject taken up by the 26th, 27th, and 32nd Guam Legislatures.

“It’s clear from a reading of Public Law 32-60 that (senators) took those regulations to be the law, and they refer to it regularly, and they taxed machines that were licensed pursuant to it,” attorney Randy Cunliffe told a panel of three justices. Cunliffe is representing Guam Music Inc., a company that owns and operates many of the machines involved in the case.

“What you read seems to suggest that there was an assumption that everything was done properly and validly, and assuming that’s the case, we’re going to recognize that. But that’s different from saying if something is wrong, we’re going to correct it, and this legislation is going to codify what was not done properly in the prior occasion,” Chief Justice F. Philip Carbullido said. “So which is the argument here? Is it that this codified something that was not done properly, or it was done properly in the prior instances, and this just recognized that?”

The Superior Court ruled in March 2020 that rules made by the Department of Revenue and Taxation, which regulates gambling and gaming on Guam, were not made properly – invalidating both the rules and the resulting licenses issued for machines. Guam Music filed an appeal of the ruling a few months later.

Judge Arthur Barcinas in his decision said the department also “exceeded its authority” when enacting the administrative rules, noting that required public notice, hearings and an economic impact study were not completed. The attorney general’s office, represented by attorney Marianne Woloschuck, has made this argument consistently, she said, even if legislation calling for the rules was enacted with a provision that said it should be done “notwithstanding” any other provision of law.

“I think that, despite – notwithstanding the fact that the clause is there, that the Department of Revenue and Taxation still has to follow the (Administrative Adjudication Act) because there’s no other law that would stop it from doing that,” she argued.

“You have a number of areas in this Public Law 32-60 that suggest – or may suggest a legislative intent that … some gaming devices would be allowed by law, and be regulated by the government,” Justice Robert Torres said in response. “There’s a lot of language in that statute that seems to suggest that.”

Woloschuck replied: “The thing is, that all the things that they said in 32-60, those things don’t validate old regulations that weren’t properly promulgated. Those regulations are still flawed.”

The court will decide on a later date and adjourned the hearing.

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