Category: Justice

Senators Therese Terlaje and Telo Taitague Introduce Medical Malpractice Pre-Trial Screening Legislation

Bill No. 430-35 (LS) Prioritizes Access to Justice for Victims and Fairness for Medical Community

FOR IMMEDIATE NEWS RELEASE (December 15, 2020- Hagåtña, Guam)

Today, Health Oversight Chairperson Therese Terlaje and Minority Leader Telo Taitague introduced Bill No. 430-35 (LS) which replaces Guam’s nearly 30-year-old Medical Malpractice Mandatory Arbitration Act (MMMAA) with a less costly pre-trial screening proposal. The MMMAA requires individuals claiming to have been victims of medical malpractice, to first arbitrate their complaint before filing suit in court.

If approved, Bill No. 430-35 (LS) allows a claimant (plaintiff) to file their claim in court where a Magistrate Judge is responsible for determining whether there is evidence to support the conclusion that a healthcare provider (defendant) failed to comply with the appropriate standard of care. The Magistrate Judge may consider expert testimony, and shall keep the complaint, proceedings, and opinion sealed until 30 days after issuance of opinion; however, the Magistrate may order the opinion sealed temporarily for an extended period or permanently upon agreement by the parties, if a trial is not pursued. Either party may pursue their right to a jury trial within 30 days after the Magistrate Judge renders his or her opinion by notifying the court of the party’s intent to proceed to trial.

Additionally, parties may at any time by mutual consent, submit their dispute pursuant to the provisions of either the Guam International Arbitration Law or Guam’s Mediation statute. Claims against any defendant that is for $10,000.00 or less shall be exempted from the new legislation if they are filed with the Small Claims Division.

“Given that we are nearing the end of the term of the 35th Guam Legislature, it is our intention to immediately enlist public feedback but it is likely additional hearings on medical malpractice reform will have to be further pursued in the 36th Guam Legislature. We value the input of everyone in the community and look forward to further discussion regarding this legislation,” stated Senator Therese Terlaje.

Last year, the 35th Guam Legislature – through the leadership of health committee Chairperson Therese Terlaje – held a series of informational hearings on Guam’s MMMAA. The very difficult but necessary dialogue brought to light legitimate concerns from families of alleged victims about the high cost of the arbitration process serving as a barrier to asserting viable medical malpractice claims and to the pursuit of justice.  We also heard the concerns from doctors that a repeal of current law may increase frivolous lawsuits, potentially increase malpractice insurance costs, deter doctors from providing emergency care outside their specialty, and ultimately impact the quality and extent of patient care they provide.

“Following the hearings, I have been working diligently, to consider alternative pre-trial procedures used in other jurisdictions and to draft viable and balanced legislation for Guam that takes all concerns into account, as much as possible yet provides some justice for those who cannot afford arbitration,” stated Senator Therese Terlaje.

“Senator Therese and I introduced Bill No. 430-35 (LS) after many months of research and discussions with families of medical malpractice victims, healthcare providers, and a series of public informational hearings conducted by the legislature. This measure prioritizes access to justice for victims and fairness for Guam’s medical community, particularly after the U.S. District Court of Guam recently issued an order asking the Supreme Court of Guam, ‘is failure to comply with the MMMAA’s arbitration requirement equitably excused when an indigent party cannot reasonably afford the non-administrative fees of any organization authorized to arbitrate under the Act and no alternate means of completing arbitration is available?” Senator Taitague stated.

“It appears the constitutionality of the MMMAA is in question. If there is a determination by the court that the MMMAA is unconstitutional, healthcare providers could be left vulnerable to baseless medical malpractice lawsuits which would harm not only their practice but the broader healthcare system on Guam. Bill No. 430-35 (LS) protects a victim’s right to legal action – while ensuring that a medical malpractice case is properly reviewed before moving forward through the court system, mediation, or arbitration.” Senator Taitague further stated.

For additional information regarding the bill or press release, please contact Senator Senator Therese Terlaje’s office at 472-3586 or send an email to senatorterlajeguam@gmail.com or Senator TeloTaitague’s office at 989-8356 or send an e-mail to senatortelot@gmail.com.

Click on this link to download a copy of Bill-No.-430-35-LSDownload

Bill to Advance Chamorro Land Trust Program Reaches Voting File

FOR IMMEDIATE RELEASE (November 23, 2020 – Hagåtña, Guam) – Senator Therese Terlaje, Chair for the Committee on Health, Tourism, Historic Preservation, Land and Justice, with the support of her colleagues in the 36th Guam Legislature, successfully moved to the voting file Bill No. 419-35, As Substituted by Committee and further substituted on the floor, AN ACT TO ADD A NEW CHAPTER 75A AND TO AMEND § 75109(a) OF CHAPTER 75, BOTH OF TITLE 21, GUAM CODE ANNOTATED, RELATIVE TO PRESERVING THE LAND RESTORATION AND JUSTICE MISSION OF THE CHAMORU LAND TRUST.

The changes to the Chamorro Land Trust Act proposed in the bill are intended to more clearly demonstrate that the Chamorro Land Trust program is a land restoration program meant to rectify the unjust taking of Chamorro homelands by the United States federal government between 1898 and 1968, and would expand the program’s eligible beneficiaries to include individuals and their descendants who owned or who ranched, farmed or otherwise occupied the lands that were taken.

Senator Terlaje thanked the many people who fought tirelessly to preserve the Chamorro Land Trust program including the late Senator Paul Bordallo, Senator Dick Taitano, Senator Angel Santos and Ed Benevente.  She also recognized the recent work of those who represented the best interests for the people of Guam during the settlement agreement which included former Chairperson of the Chamorro Land Trust Commission, Pika Fejeran, former Deputy Attorney Ken Orcutt, Attorney Mike Phillips, Deputy Attorney James Canto, among others.

Terlaje closed discussion on the session floor stating, “I am honored to be part of ensuring the history of the Chamorro Land Trust Act and its original intent to provide justice to those whose land was taken. As I said at the hearings on these bills, we have seen firsthand the impact of the massive land takings on Guam’s families.  Too many of our families live in poverty and decades later, without a stable place to live, and their ability to use the land to provide for their families is severely disrupted. It took years of vision, courage, advocacy, protests, and even lawsuits to get where we are today and in honor of those who preserved these rights, we must never stop fighting for, protecting, and expanding the potential of this land and its precious resources to nurture and sustain future generations.

It is our duty as lawmakers to safeguard the land restoration mission of the Trust, to protect the Trust from being raided by special interests; to manage the Trust better and to make it more conducive to thriving residences, agriculture, and cottage industries; and to carry these homeland programs into perpetuity for future generations as intended, so that we may truly remedy the long-term injustice of these massive land takings.”

The Oversight Chair thanks her colleagues in the 36th Guam Legislature for moving the measure forward and their words of support during today’s discussion on the bill.

Bill 419-35 is in the Third Reading File pending a vote at the close of session.

To read a copy of Bill No. 419-35 click here:Download

To see the full discussion on Bill No. 419-35 during session, please see the video below:

Senator Therese Terlaje seeks further input on three of the four bills requested by the Judiciary

FOR IMMEDIATE NEWS RELEASE (October 28, 2020 – Hagåtña, Guam) 

The Committee on Health, Tourism, Historic Preservation, Land and Justice held a public hearing today on a series of four bills that were introduced by Senator Therese Terlaje at the request of the Judiciary as a means to address the backlog of cases in the courts due to the public health emergency and pandemic.  The language and proposed amendments to statutes in Bills 408-35, 409-35, 410-35, and 411-35 were adopted by the Judicial Council of Guam in August of this year and the draft bills were sent to the Legislature on September 23rd.

“In an effort to assist the Judiciary in alleviating its backlog of cases, I introduced these bills with the exact same language as proposed by the Judicial Council and Chief Justice.  We learned today that the real root of the backlog issue may be the limitations of the court facilities to safely conduct 12 member jury panels and bring in jurors to conduct voir dire.   Based on information from today’s public hearing and concerns from local criminal defense attorneys, I will seek further input on Bills 409, 410, and 411 and ensure that we have exhausted all means available to expand our courtroom facilities and address the concerns raised,” stated Senator Therese Terlaje.

During the public hearing, the Judiciary noted that in conformance with operation restrictions set by Executive Order, it is currently utilizing only one courtroom for 12 person juries due to current health protocols and guidelines, and indicated that renovations on two other large courtrooms are underway and will not be available until December or January.  The Judiciary also estimated that it is currently experiencing a backlog on 175 arraignments and 300 criminal cases.

Testimony from the Judiciary and the Office of the Attorney General was in support of all four bills.  Attorneys from the Public Defender Service Corporation, Alternate Public Defender, and private firms provided testimony in support of Bill No. 408-35, but opposed Bills 409-35, 410-35, and 411-35 for their potential restrictions on the rights of defendants.

“I appreciate the suggestions shared during the hearing and I am very open to any additional feedback as to how we can help the courts alleviate the backlog they have now or may have going forward.  We need to strike a balance between adjudicating and administering justice as efficiently as possible without impeding on individuals’ rights or holding persons in prison longer than necessary, particularly during the pandemic.  I welcome the community and all stakeholders to submit input to my Committee until November 6th,” stated Senator Terlaje. 

Testimonies may be submitted to the Committee on Justice via the mailroom of the Guam Legislature in the Guam Congress Building, or through email at senatorterlajeguam@gmail.com.

Senator Therese Terlaje: October 2019 Off-Base Testing Report Supports Probable Agent Orange Exposure on Guam

FOR IMMEDIATE RELEASE (July 6, 2020 – Hagåtña, Guam) – The Guam EPA has publicly released the results of the anticipated Guam Chlorinated Herbicides Investigation report eight months after soil sampling efforts took place in October 2019.

Initial tests were conducted by the Superfund team in November 2018. Preliminary soil sampling results of that effort were released in January 2019, indicating the presence of 2,4-D and 2,4,5-T, the primary constituents of Agent Orange, at non-toxic levels in one sample location.

The October 2019 testing effort was a follow-up to the 2018 testing and the result of the continued advocacy of Guam Veteran Brian Moyer, who assisted the Guam EPA and the US EPA Superfund Technical Assessment and Response Team (START) with planning and soil sampling at various locations along the old fuel pipeline.

According to START Project Scientist Amanda Wagner, in the report summary, on samples collected at the Tiyan Junction location, which yielded higher concentrations of  2,4,5-T and 2,4,5-TP than other areas sampled, “It is probable that TCDD dioxin congener concentrations detected in soils are associated with chlorinated herbicides. Records of chlorinated herbicide use by the military on Guam (Navy, 1958) and veteran affidavits documenting the use of 2,4,5-T and 2,4,5-TP along with data collected from previous soil sampling events suggest the presence and use of chlorinated herbicides was likely. Finally, the herbicides in question were known to contain TCDD.”

TCDD (2,3,7,8-TCDD) is a carcinogen that when combined with chlorinated herbicides, such as 2,4,5-T, was known to have varying levels of contamination. Both are active components of Agent Orange and other Rainbow Herbicides.

Wagner further stated, “To clarify any remaining uncertainty about herbicide types, amounts and locations sprayed, continued investigation of suspect areas is recommended. Additional sampling at depths up to 12 inches is suggested to account for possible degradation and migration of residual herbicides and dioxin congeners. Similarities and differences between sample location characteristics (environmental conditions, vegetation cover, historical land use, previous excavations, use of imported fill, etc.) and the congener profiles should be further investigated as possible markers to aid in identifying historical herbicide use.”

In a letter to Senator Terlaje, the Guam EPA noted that the investigation is still ongoing and expressed the agency’s intent to correspond with the Department of Defense to express their concerns with the findings in this report and advocate for continued partnership and more cooperation with investigative efforts. The START team had been denied access to on-base sites to conduct testing in recommended areas during the October 2019 soil sampling investigation.

“This long-anticipated report brings us ten steps closer to validating that Guam Veterans and our island community were in fact exposed to Agent Orange. I once again commend the Guam EPA and the U.S. EPA START Team, for their continued service to our people in seeking the truth of this matter and wholeheartedly support the Guam EPA’s intent to advocate for cooperation and partnership with the Department of Defense for further investigations.

 I continue to call upon the Department of Defense to initiate cleanup efforts and support presumptive eligibility and compensation for exposed Veterans and our Guam community.

I remain eternally grateful for the advocacy of our people, local Veterans and Vietnam era Veterans like the late Master Sgt. Leroy Foster and the late Lonnie Kilpatrick, exposed to Agent Orange while stationed on Guam and for the groundwork of great island leaders like Angel Santos, who for over twenty years, called for truth in the face of adamant denial by the Department of Defense. They fought for truth and justice until their deaths. Their unyielding spirit of determination has been key to the progress we have made so far and will continue to be, with any justice we will achieve in the future,” stated Senator Terlaje

You can view the full report at the Guam EPA’s website: http://epa.guam.gov/herbicides-investigation.

####

COMMITTEE ON JUSTICE FORUM PROVIDES CLARITY ON INDIVIDUAL RIGHT TO SELF-DEFENSE

FOR IMMEDIATE RELEASE (June 15, 2020 – Hagåtña, Guam) – Senator Therese Terlaje and the Committee on Justice welcomed officials from the Office of the Attorney General (OAG) as well as the Public Defender Service Corporation (PDSC) to present information on the current legal landscape of self-defense law.  The forum was held to provide better insight into the current state of Guam’s laws, its effectiveness in protecting individuals at home and in public spaces, the existing limits on the use of force for the purpose of defending one’s own life, the lives of others, or in defense of property, the rates of successful claims of self-defense, along with challenges encountered in self-defense cases, and other relevant information on self-defense.

During the informational forum, Assistant Attorney General Sean Brown clarified that the use of deadly force self-defense is any force used to protect oneself, if that force can cause death or serious bodily injury, such as a firearm or knife, bat or motor vehicle. There are three limitations which include the following:

·       Must be a response to someone who might be experiencing death, serious bodily harm, kidnapping or criminal sexual conduct

·       Could not have provoked the need for deadly force

·       A duty to retreat

Deputy Director of PDSC, John Morrison, cited a report issued by the United States Commission on Civil Rights which concluded more times than not, the person that used deadly force had a criminal background and these laws are more likely to be invoked in situations where there is a fight that is escalating rather than during home invasions. The Deputy Director also stated he has not seen a case where deadly force has been used during a home invasion since the Castle Doctrine was enacted in 2014.

Both Attorneys Brown and Morrison reiterated that Guam’s law provides for the prosecution to prove beyond a reasonable doubt that self-defense did not occur, if it should be invoked, with Attorney Morrison stating that this provision makes Guam’s self-defense law more robust than most other states in the nation.

Following the informational forum, a public hearing was held for Bill 47-35, authored by Senator Joe San Agustin, which would expand the “Castle Doctrine”, removing the duty to retreat in the use of deadly force self-defense in any location a person has the right to be, commonly known as “Stand Your Ground.”

Senator Terlaje referenced a report from the American Bar Association’s National Task Force on Stand Your Ground (SYG) Laws which does not recommend the enactment of such legislation, based on broad studies that have found the following:

·       An individual’s right to self-defense was sufficiently protected prior to the enactment of SYG laws.

·       SYG States have experienced an increase in homicides.

·       The application of SYG law is unpredictable, uneven, and results in racial disparities.

·       Victim’s rights are undermined in States with statutory immunity for criminal prosecution and civil suits related to SYG cases.

The Oversight Chair also remarked during the hearing that the NAACP and the ACLU recommended against SYG measures.

Senator Terlaje noted that the Castle Doctrine allows the use of deadly force without the duty to retreat in one’s home, place of business and vehicle and notes that right to self-defense does not cease to exist outside of those places stating, “If self-defense is invoked, under Guam law, the prosecution must prove beyond a reasonable doubt that self-defense did not occur. We were assured that this provision is strong and continues to preserve the individual right to self-defense, ensuring reasonableness and fairness in the application of justice.”

Testimony in support of and in opposition to Bill 47-35 were received by the committee.  Written testimony can be submitted via email to senatorterlajeguam@gmail.com through Jun 29, 2020.

COMMITTEE ON JUSTICE TO HOLD INFORMATIONAL BRIEFING ON THE RIGHT TO SELF-DEFENSE

FOR IMMEDIATE NEWS RELEASE (June 9, 2020- Hagåtña, Guam)

Senator Therese M. Terlaje and the Committee on Justice will be holding a virtual informational briefing on the Right to Self-Defense on Guam on Monday, January 15, 2020 at 9 am.  Primary stakeholders have been invited to present on the topic which include the Attorney General, Chief Prosecutor, Guam Police Department, Public Defender and the Guam Bar Association.

This hearing will serve to further build our foundational understanding of the basic right to self-defense, and the allowed use of deadly force, which follows a previous hearing held in April of 2018.

During the 2018 hearing, the Attorney General, Chief of Police, and Executive Director of the Public Defender Service Corporation were united in opposition to a Stand Your Ground, also known as “Shoot First”, bill which would have expanded the allowable use of deadly force in self-defense beyond homes, cars, and places of work to public spaces and private establishments such as streets, restaurants, bars, grocery stores or any place a person had a right to be present.

Attorney Stephen Hattori, the Executive Director of the Public Defender Service Corporation, testified that under current law, “You can use self-defense everywhere, you have a duty to retreat, unless the incident occurs in your home, vehicles, or place of work.  This bill would expand the zone of protection.  A Stand Your Ground law makes everywhere you step your castle.”

Both Hattori and former Chief Prosecutor Joseph B. McDonald provided research to committee members, which included a study by the American Bar Association’s National Task Force on Stand Your Ground, published in 2015.  The Task Force conducted a broad investigation of Stand Your Ground laws across the United States that revealed several important findings, which include:

1.     Based on recent empirical studies, Stand Your Ground states experienced an increase in homicides.

2.     Multiple states have attempted to repeal or amend Stand Your Ground laws.

3.     The application of Stand Your Ground laws is unpredictable, uneven, and results in racial disparities.

4.     An individual’s right to self-defense was sufficiently protected prior to Stand Your Ground laws.

5.     Victims’ rights are undermined in states with statutory immunity from criminal prosecution and civil suits related to Stand Your Ground cases.

Senator Terlaje hopes that the Legislative Committee on Justice will be fully informed of the current state of the law and the effects of self-defense law on the prosecution and rates of homicide, as the 35th Guam Legislature considers several criminal penalties bills and a Stand Your Ground bill introduced this term. 

“In other jurisdictions, Shoot First laws have increased homicides in the community. This bill may affect our criminal justice system’s ability to ensure justice. Every senator and our entire community must fully understand our existing right to self-defense, and must carefully consider the intended and unintended potential consequences to our way of life by expanding the allowed use of deadly force on our island,” stated the Senator.

This informational briefing will immediately proceed to a public hearing for Bill No. 47-35 (COR) authored by Senator Joe S. San Agustin which would expand the “Castle Doctrine” justification for acts of self- defense and eliminate the requirement of retreating before the use of force in the face of imminent danger.

The virtual informational briefing and public hearing will broadcast on local television, GTA Channel 21, Docomo Channel 117/60.4 and stream online via www.guamlegislature.com.  A recording of the hearing will be available online via Guam Legislature Media on YouTube after the hearing.

For more information, please call the Office of Senator Therese M. Terlaje at (671) 472-3586 or email at senatorterlajeguam@gmail.com.

Statement from Senator Therese Terlaje on CLTC Finalized Settlement Agreement

FOR IMMEDIATE RELEASE (June 5, 2020 – Hagåtña, Guam) – In late December, we received the Resolution from CLTC with the initial term sheet of an agreement. My Committee held an oversight hearing on January 9th and was advised that the settlement agreement was still pending.

I corresponded with Assistant AG Canto, Attorney Phillips and the CLTC Chair after the hearing regarding draft legislation, and it is my understanding that settlement discussions with DOJ continued even through the pandemic. Although the Legislature was not present at the conferences, the agreement was finally adopted by CLTC in late May.

Today’s filed agreement indicates the AG and Governor have also signed on. Of course, the committee will do its due diligence to consider the proposed amendments to statute outlined in the final agreement.

Senator Therese Terlaje introduces bill to assist Office of the Attorney General in protecting Guam’s historic sites and environment

FOR IMMEDIATE NEWS RELEASE (June 13, 2019 – Hagåtña)

In an effort to assert Guam’s position in response to the destruction of historic sites and environmental contamination, Senator Therese Terlaje has introduced Bill No. 163-35 (COR) to allow the Attorney General of Guam to hire a lawyer on a contingency fee basis to assist the government of Guam in the protection of historical sites and the environment. In a contingency fee arrangement, a lawyer is paid a portion of the amount awarded to the government of Guam if the outcome is successful.

“We must pursue every avenue possible to ensure our cultural and historic sites are protected from destruction and that our environment is safeguarded.  Our agencies often need legal assistance immediately or complex litigation, and this will give the Attorney General flexibility to explore all avenues of providing urgent legal response on behalf of the people of Guam,” stated Terlaje. 

lick here for copy of Bill No. 163-35 (COR). 

Media coverage of May 6th Criminal Sexual Conduct Roundtable

https://pacificnewscenter.com/concerns-over-psych-evaluation-raised-in-parole-roundtable/?fbclid=IwAR2D0thcN72DCshWw_qawnl81QSDGuGJ92lrGKziyDfHaSxrc7p-aurZLw8
https://k57.com/senator-therese-terlaje-with-andrea-pellacani/
May 3, 2019 Conversation with K57 previewing items to be discussed during the May 6th Criminal Sexual Conduct Roundtable
https://k57.com/senator-therese-terlaje-with-andrea-pellacani-2/
May 7, 2019 Conversation with K57 regarding key findings from May 6th Criminal Sexual Conduct Roundtable


May 8, 2019 Pacific Daily News article: https://www.guampdn.com/story/news/local/2019/05/07/treatment-programs-sexual-offenders-changes-mafnas-freed/1124230001/

Key Findings from May 6th Criminal Sexual Conduct Roundtable

FOR IMMEDIATE NEWS RELEASE (May 6, 2019 – Hagåtña)

Senator Therese Terlaje held a roundtable discussion this afternoon with members of the Judiciary, Office of the Attorney General, Department of Corrections, the Parole Board, Guam Behavioral Health and Wellness Center, and Public Defenders Service Corporation regarding Guam’s sentencing laws, rehabilitation programs and parole for repeat sexual offenders, particularly when committed against children. 

Prior to the hearing, Senator Therese Terlaje asked the invited agencies to provide information that would help the Legislature determine if there is adequate assessment, treatment, or rehabilitation for repeat criminal sexual contact offenders and if any such tools are currently being used or should be incorporated into sentencing and parole. 

The following are some of the key findings:

·       Prior to 2017, there were no rehabilitation or treatment programs available on Guam for repeat Criminal Sexual Conduct offenders.  Department of Corrections (DOC) reported that it recently instituted a Sex Offender treatment program, based on cognitive behavior interventions (CBI) best practices, but only 15 people can be put in this program.

·       Psychological evaluations are often requested by the Parole Board to be included in Parole Investigation Reports used to make parole decisions. However, these evaluations are not always conducted or made available to the Parole Board before hearings are held.  Chairman MiChelle Taitano of the Guam Parole Board reported that in light of the Paul Mafnas case, no hearings will be held unless the Parole Board has a completed psychological evaluation.

·       Risk assessments are not catered to criminal sexual contact repeat offenders and this risk may not be adequately known by judges, Department of Corrections or Parole Board.

·       Pre-sentencing investigation reports and recommendations regarding parole made at the time of sentencing are have not been available to the Parole office or Parole Board when making parole decisions even though it is mandated by statute.

·       Current reality is that criminal sexual conduct offenders will continue to be released at the expiration of sentence without accurate risk assessment, without any treatment and without further monitoring required.

Senator Terlaje states, “All relevant information and risk assessment must be made available.  We can’t pretend to know the risk.  We must all unite and act immediately to prevent repeat offenses and to protect our community. If we can’t get the correct information to ensure the safety of children, we should put a moratorium on parole.