A Superior Court judge has issued a preliminary order requiring the Guam Election Commission to allow members of the public to attend its meetings, even when they are held in secured areas, and to notify people excluded during recesses when meetings resume.

Judge Elyze Iriarte's Oct. 30 decision in the case brought by Ron McNinch said the preliminary ruling was based on the GEC's own concessions, not factual findings, given the “proximity” of the general election and the “limited factual record” before the court.

McNinch sought a writ of mandate compelling the GEC to keep its meetings open to the public, including during recesses. The petition followed an incident on Aug. 1, when McNinch attempted to attend a GEC meeting during the primary election ballot-counting process at the University of Guam's Edward M. Calvo Field House, according to the decision in SP 0155-26.

The Field House was a secured area, with access controlled through approved badges. The decision states that public access was allowed during commission meeting sessions and that the Guam Police Department provided security.

“Various media outlets invited him for interviews, but he did not have a press badge,” the decision states.

The parties agreed that McNinch was directed to leave the premises at some point that evening. McNinch said a police officer told him to leave at about 9:20 p.m., before the meeting began, and escorted him outside the secured area. The GEC maintained that he was directed to leave after the commission recessed to count ballots.

GEC meeting minutes show the meeting began at about 9:43 p.m., according to the decision.

“In any event, the incident embarrassed McNinch,” the court said.

The GEC livestreamed the meeting. During the recess, the livestream showed a black screen while staff tabulated and resolved ballots rejected by the voting tabulator, the decision states.

The court found that duplicating ballots rejected by vote tabulators is a ministerial act that does not have to take place during a public meeting.

McNinch said he was not informed when the meeting resumed after the ballot count and remained outside without being told he could re-enter.

The decision also discusses McNinch's attendance at the commission's Aug. 15 meeting. After stepping outside, he was told by another attendee that the attendee had been excluded from the meeting. McNinch said he felt “chilled” by his earlier experience of being escorted out before the Aug. 1 meeting began and chose not to return, according to the court.

McNinch filed the petition after the Aug. 15 meeting, seeking to compel the GEC to comply with the Open Government Law. He did not seek to void any actions taken during either meeting.

GEC concessions form basis for preliminary order

During an Oct. 23 hearing on an order to show cause, the GEC's attorney conceded that the Open Government Law allows members of the public to attend meetings held in secured areas and that excluding them violated the law.

The GEC also told the court it had no “intent to remove him or any member of the public during the open proceedings,” the decision states.

The commission further acknowledged that when a meeting resumes after a recess, it should inform members of the public who were excluded that the meeting has recommenced. The GEC said it did “not disagree with having to call the public back,” according to the court.

The judge described the commission's concessions as “binding admissions” regarding its obligations under the Open Government Law.

The preliminary order requires the GEC, for meetings conducted in connection with the upcoming election, to:

  • Allow members of the public to attend commission meetings, even when held within secured areas.

  • When limiting public access during recesses, take reasonable measures to inform excluded members of the public when the meeting will resume.

The court acknowledged that the GEC may exclude the public from areas necessary for the orderly conduct of its business, but said such restrictions should not interfere with the public's general access to meetings.

The ruling is preliminary and intended to ensure the commission complies with the Open Government Law for the remainder of the election season, the court said.

“Should the parties' concerns remain unresolved after the election, the Court will convene an evidentiary hearing to take testimony and resolve those disputed facts,” the decision states.

The GEC must submit a status report on its compliance by Dec. 3. The court will schedule a status hearing after receiving the report.