Macris v. Richardson (Full Text)
IN THE SUPREME COURT OF GUAM
GEORGE P. MACRIS,
Plaintiff- Appellant,
IAN C. RICHARDSON,
Defendant-Appellee.
Supreme Court Case No.: CVA08-004
Superior Court Case No.: CV1296-06
OPINION
Cite as: 2010 Guam 6
Appeal from the Superior Court of Guam
Argued and submitted on March 18,2009
Hagitiia, Guam
Appearing for Plaintiff-Avpellant:
Seaton M. Woodley, 111, Esq.
Attorney at Law
Ste. 102, Tanaka Bldg., Rte. #4
Hagitiia, GU 969 10
Appearing for Defendant-Appellee:
R. Todd Thompson, Esq.
Mair, Mair, Spade & Thompson
238 Archbishop F.C. Flores St.
Ste. 80 1, DNA Bldg.
Hagktiia, GU 969 1 0
Macris v. Richarcison, Opinion
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BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice;
KATHERINE A. MARAMAN, Associate Justice.
CARBULLIDO, J.:
[I] Plaintiff-Appellant, Dr. George P. Macris (“Macris”), and Defendant-Appellee, Dr. Ian
C. Richardson (“Richardson”), were emergency room staff physicians at Guam Memorial
Hospital. Richardson sent a memorandum on September 28 ,2006 [hereinafter “Memorandum”],
to the hospital administrators and certain emergency room directors alleging deficiencies in
Macris’ treatment of an emergency room patient. Macris believed the Memorandum was
defamatory and brought this libel action against Richardson.
[2] The trial court found that Richardson’s Memorandum was “absolutely pr iv i leged under
19 GCA 5 2105(b)(3) and granted summary judgment in favor of Richardson. Macris appeals,
arguing that the trial court “erred in not considering the existence and application of Public Law
No. 22-87 which added section 413 to Title 6, Guam Code Annotated, which would have
afforded [Richardson] only a qualified privilege . . . not the absolute privilege stated by the
court.”‘ Appellant’s Br. at 5 (Nov. 1,2008).
[3] For the reasons set forth below, we vacate the judgment and remand to the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
[4] Plaintiff-Appellant, Dr. George P. Macris, and Defendant-Appellee, Dr. Ian C.
Richardson, were emergency room staff physicians at Guam Memorial Hospital (“GMH) .
Richardson sent a memorandum on September 28, 2006 to the following individuals: 1) the
Acting ER Committee Chairman; 2) the ER Committee’s Chairman Elect; 3) the GMH Medical
Director; and 4) the GMH Administrator. The Memorandum entitled “Re: ER Incident (1)
defective Physician Assessment and Management of Potentially Life-Threatening Event; (2)
Physician FalsificationRabrication of Medical Record,” alleged concerns regarding Macris’
1 Although Macris argues his position is supported by Public Law 22-87 which was originally codified as 6
GCA 4 413 , this public law and correlating statute have since been amended and moved to the Guam Rules of
Evidence ( “GRE ) Rule 4 1 7 . See Promulgation Order No.: 06-00 1, Note to GRE 4 13.
Macris v. Richardson, Opinion
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quality of care. Appellant’s Br. at 3. Thereafter, the GMH Administrator forwarded to the
Chairman of the Medical Executive Committee (“MEC”) a request for a review of Macris’
patient and hospital practices. The trial court found that “[alttached to this request were several
memoranda from hospital staff, including [the Memorandum] .” Appellant’s Excerpts of Record
(“ER ) , tab D at 1-2 (Dec. & Order, May 19, 2008). The MEC Chairman requested for an
immediate “peer review” to be conducted. The Chairman Elect of the ER Committee submitted
a “peer review” report which recommended that Macris attend an intensive ER review course
followed by another physician proctoring his cases.
[5]
Shortly thereafter, Macris brought this libel action against Richardson based on the
Memorandum. Richardson later filed a motion for summary judgment arguing, inter alia, that
the Memorandum was “absolutely privileged” under Guam Rules of Evidence ( “GR E ) 41 7 and
19 GCA 4 21 05. In its Decision and Order, the trial court observed that Macris did not provide
any opposition to the absolute privilege argument. ER, tab D at 5 (Dec. & Order) (“Plaintiff
does not provide opposition to this argument. Nonetheless, the Court will not acquiesce in
Defendant’s ‘absolute privilege’ so absolutely.”). Ultimately, the trial court found California
case law persuasive in determining that Richardson’s Memorandum was “absolutely privileged”
under 19 GCA 4 2 105(b)(3) and granted summary judgment in favor of Richardson.
[6] Macris appeals, arguing the narrow issue that the trial court “erred in not considering the
existence and application of Public Law No. 22-87 which added section 413 to Title 6, Guam
Code Annotated, which afforded [Richardson] only a qualified privilege . . . not the absolute
privilege stated by the Court.” Appellant’s Br, at 5.2 Macris asserts, without any explanation or
cited authority, that if the trial court addressed Public Law 22-87, the court would have
2 Public Law 22-87, originally codified as 6 GCA 8 413, was substantially amended by P.L. 24-84. Guam
Supreme Court Promulgation Order No. 06-001, which amended and restated the Guam Rules o f Evidence, moved 6
GCA 8 413 to its current codification as GRE 417. Re: Adoption o f the 2006 Guam Rules Evidence, PRM06-001 at
1 1 (Promulgation Order No. 06-001, Jan. 6 ,2006 ) . Macris conceded at oral argument that GRE 4 17(a) is the current
statutory subsection most relevant to the events central to this litigation and that 6 GCA 8 413 (Public Law 22-87) is
not applicable. Digital Recording at 10:03: 10-10:09:45 (Oral Argument, Mar. 18,2009).
Macris v. Richardrron, Opinion
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necessarily found that a qualified privilege, rather than an absolute privilege, would have
applied. Then without explaining the standard for summary judgment or providing any law to
support his assertion, Macris additionally argued that if a qualified privilege applied, Macris
would have defeated the motion for summary judgment.
11. JURISDICTION AND STANDARD O F REVIEW
[7]
This court has jurisdiction over an appeal from a final judgment of the Superior Court.
48 U.S.C.A. § 1424-1(a)(2) (West Supp. 2009); 7 GCA § § 3107(b), 3108(a) (2005). The trial
court’s grant of a motion for summary judgment is reviewed de novo. Wasson v. Berg, 2007
Guam 16 7 9.
A. Adequa te Briefing Pu r suan t to GRAP Rule 13(a)(9)
111. DISCUSSION
[8]
Rules 13(a)(9)(A) and (B) of the Guam Rules of Appellate Procedure require that
arguments in an appellant’s brief must contain appellant’s contentions supported by citations to
appropriate legal authority and factual record as well as state the applicable standard of review
for each issue.3 Guam R. App. P. (“GRAP”) 13(a)(9)(A), (B). Macris, who was represented by
counsel throughout trial and appeal, failed to meet the requirements mandated by Rule
13(a)(9)(A) and (B). An appellate brief which substantially fails to meet the requirements of
Rule 13 faces the consequences outlined in GRAP Rule 17(e). GRAP 13(m); GRAP 17(e).
When a brief does not conform to Rule 13, the Guam Supreme Court may exercise its discretion
and dismiss the appeal. GRAP 13(m); GRAP 17(e).
Rule 13(a)(9)(A) and (B) of the Guam Rules of Appellate Procedure provides that an appellant’s brief “must”
have arguments which contain:
(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies; and
(B) for each issue, a concise statement of the applicable standard of review (which may appear in
the discussion of the issue or under a separate heading placed before the discussion of the issues)[.]
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[9] We have previously treated the failure to adequately brief issues under Rule 13 as a
waiver of issues on appeal. Guam Greyhound, Inc. v. Brizill, 2008 Guam 13 77 3 n.2, 9 n.3;
McGhee v. McGhee, 2008 Guam 17 7 9 & n.2. Macris argues that the trial court “erred in not
considering the existence and application of Public Law No. 22-87 which added section 413 to
Title 6, Guam Code Annotated, which would have afforded [Richardson] only a qualified
privilege . . . not the absolute privilege stated by the Court.” Appellant’s Br. at 5. Macris does
not explain what language in the applicable statute would support his assertion that there is a
qualified privilege. Moreover, Macris fails to explain why the absolute privilege finding of the
trial court is incorrect.
[ l o ] At the trial level, opposing counsel and the trial court informed Macris that he was basing
his argument on an incorrect version of the statute. Yet in his appellate brief, Macris still based
his arguments on Public Law No. 22-87.4 Macris attached a copy of Public Law No. 22-87 to his
trial and appellate documents, demonstrating that he was arguing for application of the incorrect
law throughout the entire time. Richardson addressed this error again in his appellee’s brief, but
Macris failed to request permission to amend the error or address the matter in a reply brief. It
was not until oral arguments that Macris finally corrected this error.
[1 :L] We have previously stated that we would reach the merits of a case not properly briefed if
declining to review the merits “would result in manifest injustice.” However, our discretion is
not necessarily limited to only cases where manifest injustice would result from not reaching the
merits. Compare People v. Quinata, 1999 Guam 6 7 26 with United States ex rel. Meyer v.
Horizon Health Corp., 565 F.3d 11 95, 1201-02 (9th Cir. 2009) (deciding to reach issues not
adequately briefed pursuant to Rule 28(a)(9)), Simangunsong v. Holder, 335 F. App’x 755, 757
During the motions hearing on October 17,2007, Richardson pointed out that 6 GCA 8 4 13 was replaced by
GRE 417 and the trial court asked about “public law 24 dash.” Transcript (“Tr.”) at 21 (Mot. Hr’g, Oct. 17, 2007).
Throughout the hearing, Richardson addressed GRE 417. Id. at 12, 18. The trial court had to point out the correct
statute to Macris, and stated, “I do want to ask one last question and it’s on 4 17. . . . Did you respond to (a)(2) to the
Court? That’s formally [sic] 413, it’s now 417(a)(2).” Id . at 44. However, Macris continued to base his argument
on Public Law 22-87 and 6 GCA 8 413. Id. at 29-30.
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& n.1 (10th Cir. 2009) (deciding to reach issues not adequately briefed pursuant to Rule
28(a)(9)), Mendoza v. US. Att’y Gen., 327 F.3d 1283, 1286 n.4 (11th Cir. 2003) (“While we
admonish Mendoza’s counsel for failing to comply with Rule 28(a)(9)(A), we exercise our
discretion to consider his brief.”), a n d United States v. Miranda, 248 F.3d 434, 444 (5th Cir.
2001).’
[12] Although the failure to satisfy the briefing requirements according to appellate rules of
procedure ordinarily constitutes a waiver of issues on appeal, courts have exercised discretion in
appropriate circumstances to still reach the issues on appeal. See, e.g., Horizon Health Corp.,
565 F.3d at 1201-02 (acknowledging rule but still reaching the merits of the issue);
Simangunsong, 335 F. App’x at 757 n.1; Mendoza, 327 F.3d at 1286 n.4; Miranda, 248 F.3d at
444. The Fifth Circuit, for example, reevaluated its case law regarding waiver of issues not
properly briefed according to Rule 28(a)(9), subsections (A) and (B) of the Federal Rules of
Appellate Procedure and concluded that the court “may consider such an issue, particularly
where substantial public interests are involved.” Miranda, 248 F.3d at 444 (citing Hatley v.
Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993).
[13] Similarly, we exercise our discretion here to reach the merits in order to resolve the
conflicting policies inherent in extending absolute privilege: the balancing of the public interest
in reporting healthcare professionals’ misconduct with the need to prevent undue injury from
defamation. While we admonish Macris’ counsel for failing to comply with Rule 13(a)(9)
subsections (A) and (B); we exercise our discretion to reach the merits.
‘ Rule 13(a)(9), subsections (A) and (B) of the Guam Rules o f Appellate Procedure, are identical to Rule
28(a)9, subsections (A) and (B) of the Federal Rules o f Appellate Procedure. Compare GRAP 13(a)(9)(A), (B) with
Fed. R. App. P. 28(a)(9)(A), (B). Therefore, federal court interpretation o f the analogous federal rules is persuasive
authority. McGhee, 2008 Guam 17 7 12 (“Because the Guam Rules of Appellate Procedure are substantially similar
to the Federal Rules o f Appellate Procedure, we look to federal case law for guidance.”).
Macris v. Richardson, Opinion
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B. Qualified Immun i ty Pu r suan t to GRE 8 417(a)(3)
[14] During oral arguments, Macris conceded that GRE 417(a)(3) is the only applicable rule
that would provide a qualified immunity rather than an absolute immunity. Digital Recording at
10:03: 10- 10:09:45 (Oral Argument, Mar. 18, 2009). GRE 4 17(a)(3) grants qualified immunity
for “any ac t performed during peer reviews or quality of care utilization reviews if the person
acts in good faith without malice.” GRE 4 1 7(a)(3) (emphasis added). Since only GRE 4 1 7(a)(3)
would support a qualified immunity argument, the next inquiry is whether the “communication”
central to this suit falls within the meaning of “act” under GRE 4 17(a)(3). Id.
[15] A statute should be construed to give effect to all of its provisions so that no part would
be superfluous or insignificant. E .g . , Duncan v . Walker, 533 U.S. 167, 174 (2001) (Refusing to
adopt a construction of the statute that would render a word “insignificant, if not wholly
superfluous,” the U.S. Supreme Court reiterated its “duty to give effect, if possible, to every
clause and word of a statute.” (internal quotation marks omitted)); see also Camacho v . In re
Gumataotao, 2010 Guam 1 T[ 19 (observing the principle of statutory construction that “a
narrower, more specific provision of a statute takes precedence over a more general provision of
the same statute”). GRE 417(a) contains three subsections addressing three distinct areas to
which varying degrees of immunity are to be applied: 1) participation; 2) communication; and 3)
action. GRE 417(a).6 To interpret Richardson’s “communication” to be an “act” within the
GRE 417(a) states:
[l’lhere shall be no monetary liability on the part of, and no cause of action for damages shall arise
against any person, partnership, corporation, firm, society or other entity arising from, relating to, or
regarding:
(1) participation in quality of care or utilization reviews by plan or health care provider
peer review committees which are licensed health care providers composed mainly of
physicians and surgeons, dentists, nurses, allied health professionals, optometrists or any of the
above;
( 2 ) communication of information, the making or issuance of any recommendation or
evaluation to any governmental agency, medical or specialists society, regarding the
qualifications, fitness, professional conduct or practices of health care professionals, which
communication, recommendation, and evaluation are the results of peer reviews or quality of
care or utilization reviews;
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meaning of GFE 417(a)(3) would render the meaning of “communication” in GFE 4,17(a)(2)
superfluous. See GRE 417(a)(2), (3); Duncan, 533 U.S. at 1 7 4 . ~
[16] Additionally, “it is instructive to consider how courts in jurisdictions with similarly
worded statutes have resolved this issue.” Macris v. Swavely, 2008 Guam 18 7 17. GFE
41 7(a)(2) and (3) are similar to California Civil Code (“Cal. Civ. Code”) $ 5 43.7 and 43.8.’
Therefore, California courts’ interpretation of the words “act” and “communication” are
instructive when interpreting whether a communication falls within the meaning of “act” in 6
GRE 417(a)(3). See id. 7 17.
[17] The California Supreme Court explained that the purpose of “act” in section 43.7 was to
protect actions taken by a peer review committee that are in keeping with its investigatory and
disciplinary functions, while communications that would normally fall under libel would not.
See, e.g., Westlake Cmty. Hosp. v. Super. Ct. of L.A. County, 551 P.2d 410, 420 (Cal. 1976);
–
(3) any act performed during peer reviews or quality of care utilization reviews if the
person acts in good faith without malice. . . .
GRE 4 17(a) (emphases added).
7 Since a “communication” under GRE 4 17(a)(2) pertains to ” . . . the results of peer reviews or quality of care
or utilization reviews,” GRE 417(a)(2) does not apply to the facts of this case. GRE 417(a)(2) (emphasis added).
8 Compare Cal. Civ. Code 4 43.7 (1961), (1976), (1982), (2003), and Cal. Civ. Code 4 43.8 (1977), (2007)
with 6 GCA 4 417. Although Cal. Civ. Code $ 9 43.7 and 43.8 have undergone several amendments between 1961
and 2007, the substantive language distinguishing “act” and “communication” remains the same. Section 43.7(b)
states:
There shall be no monetary liability on the part of, and no cause of action for damages shall arise against,
any professional society, any member of a duly appointed committee of a medical [society] . . . for any
act or proceeding undertaken or performed within the scope of the functions of [the] committee which is
formed to maintain the professional standards of the society established by its bylaws. . . .
Cal. Civ. Code 4 43.7(b) (emphasis added) (same language kept throughout 1961 through 2003 versions).
Cal. Civ. Code 4 43.8(a) states:
[Tlhere shall be no monetary liability on the part of, and no cause of action for damages shall arise
against, any person on account of the communication of information in the possession of [that] person to
any . . . peer review committee . . . when [the] communication is intended to aid in the evaluation of the
qualifications, fitness, character, or insurability of a practitioner of the healing [profession] . . . .
Cal. Civ. Code 4 43.8(a) (emphasis added) (same language kept throughout 1977 through 2007 versions).
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Slaughter v. Friedman, 649 P.2d 886, 890 (Cal. 1982). The California Supreme Court in
Westlake observed:
[Tlhe gist of her claim is not that her injury has been occasioned simply by
defendants’ malicious statements at the proceedings, but rather that she has been
injured by the malicious actions of the hospital and its committee members in
revoking her staffprivileges. As the Court of Appeal pointed out . . . it is section
43.7, and not section 47, subdivision 2, which ‘is concerned with the actions
taken by a medical committee (i.e., refusing, suspending or revoking hospital
privileges to any doctor)’. . . .
Westlake, 551 P.2d at 420 (emphases added) (citations omitted). The court in Slaughter
similarly observed:
Section 43.7 protects peer review committee members from liability for acts
performed in reviewing the quality of medical or dental services, while section
43.8 protects private communications “to any hospital, hospital medical staff,
professional society, medical or dental school, professional licensing board . . .,
peer review committee, or underwriting committee . . . ” evaluating practitioners
of the healing arts.
Slaughter, 649 P.2d at 890 (emphases added) (omissions in original). We interpret “act” in
section 41 7(a)(3) to cover actions such as “refusing, suspending or revoking hospital privileges”;
actions mandating probationary periods and supervision over a physician under investigation; or
other similar actions related to the investigatory process. See Westlake, 55 1 P.2d at 420.
[IS] The only rule that Macris believes would provide a qualified privilege, GRE 417(a)(3),
does not apply to the Memorandum which is a “communication.” See, e.g., i d at 420.
Therefore, we must next determine whether a communication which prompts an official
proceeding shares the same level of privilege as statements made during or as the result of an
official proceeding and determine whether the Memorandum was a privileged communication
made in an official proceeding in accordance with 19 GCA !j 2 105, as the trial court held.
C. Privilege for Communication Initiating an Of’ficial Proceeding
[19] Under California case law, a communication which prompts an official proceeding shares
the same level of privilege as statements made during or as the result of an official proceeding.
King v. Borges, 104 Cal. Rptr. 414, 4 16- 17 (Ct. App. 1972). The court in King observed that
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L
“[ilt seem[ed] obvious that in order for the Commissioner to be effective there must be an open
channel of communication by which citizens can call his attention to suspected wrongdoing. That
channel would quickly close if its use subjected the user to a risk of liability for libel. A qualified
privilege is inadequate protection under the circumstances.” Id. at 4 17- 18. Ultimately, the court
in King found that “a communication to an official administrative agency, which communication
is designed to prompt action by that agency, is as much a part of the ‘official proceeding’ as a
communication made after the proceedings have commenced.” Id. at 41 7. We agree.
[20] We are persuaded by the strong policy of improving quality of care without the fear of a
retaliatory lawsuit. See, e.g., Kibler v. It Inyo County Local Hosp. Dist., 138 P.3d 193, 196 (Cal.
2006) (observing that the “peer review of physicians . . . serves an important public interest.”);
Imperial v . Drapeau, 716 A.2d 244, 250-51 (Md. 1998) (“Because the quality of pre-hospital,
emergency medical care can literally be a matter of life and death, it carries a very high priority.
Accordingly, public policy encourages the communication of information to public authorities
responsible for maintaining the quality of emergency medical services.”); Hackethal v .
Weissbein, 592 P.2d 1 175, 1 18 1-86 (Cal. 1979) (Tobriner, J. dissenting) (discussing the
important public policy interest). Although the court’s discussion in King is narrowly tailored to
administrative agencies, we extend the same logic to situations where a communication is
designed to prompt “official proceedings” that are intended to benefit the public. We next
address whether GMH’s peer review is an “official proceeding” under 19 GCA 5 2 105.
D. An “Official Proceeding” under 19 GCA § 2105
1. Review of Statutory History and California Case Law
[2:1] Title 19 GCA 5 2105 originates fiom a 1927 version of California Civil Code 5 47.9
Compare Cal. Civ. Code 5 47 (1927) with Guam Civ. Code § 47 (1953) (originally adopted by
9 California Civil Code 4 47(1) and (2) states:
Privileged publications. A privileged publication is one made-
1. In the proper discharge of an official duty.
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the Naval Government in 1933).1° The 1945 version of 5 47 is not substantively different from
the 1927 version. Compare Cal. Civ. Code 5 47 (1927) with Cal. Civ. Code 5 47 (1945).11
However, in 1979, the California legislature significantly amended California Civil Code 5 47.
Compare Cal. Civ. Code 5 47 (1945) with Cal. Civ. Code 47 (1979).
[22] The last California Supreme Court case which analyzed the 1945 version of section 47
and the application of “any other official proceeding authorized by law” to a hospital peer review
was Hackethal v. Weissbein in 1979. 592 P.2d 1175 passim. The court in Hackethal found that
an absolute privilege did not exist for a private hospital peer review, while approving California
appellate cases12 that extended such a privilege to similar government agency proceedings. Id. at
1177. However, we are not persuaded by the logic that any governmental hospital peer review is
an “official proceeding” solely because the hospital is a government agency. It is one factor a
court considers. See, e.g., Butz v. Economou, 438 U.S. 478, 513-14 (1978); Ofen v. Brenner,
935 A.2d 719, 726-31 (Md. 2007); Imperial, 716 A.2d at 248-49; McDermott v. Hughley, 561
A.2d 1038, 1044-45 (Md. 1989); Gersh v. Ambrose, 434 A.2d 547,55 1-52 (Md. 198 1).
[23] Although GMH is a governmental agency established by 10 GCA 5 80103 with powers
pursuant to 10 GCA 5 80104, that does not necessarily make GMH’s peer review process an
“official proceeding.” See 19 GCA 5 2105 (2005); Ofen, 935 A.2d at 726-28 (summarizing case
2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding
authorized by law; provided, that an allegation or averment contained in any pleading or
affidavit filed in an action for divorce or an action prosecuted under section 137 of this code
made of or concerning a person by or against whom no affirmative relief is prayed in such
action shall not be a privileged publication as to the person making said allegation or averment
within the meaning of this section unless such pleading be verified or affidavit sworn to, and
be made without malice, by one having reasonable and probable cause for believing the truth
of such allegation or averment and unless such allegation or averment be material and relevant
to the issues in such action.
Cal. Civ. Code 9 47(1)-(2) (1927).
‘ O Guam Civ. Code 9 47 was re-codified as 19 GCA 9 2105.
l ‘ Since the focus of the inquiry is on 9 47(2) subsection 3 (19 GCA 9 2105(b)(3)) which did not change
between the 1927 and the 1945 versions, the minor amendments in the subheading, subsection 4 and subsection 5
are immaterial to this analysis. Compare Cal. Civ. Code 9 47 (1927) with Cal. Civ. Code 9 47 (1945).
12 E . g . , Ascherman v. Natanson, 100 Cal. Rptr. 656 (Ct. App. 1972).
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law where the question of privilege did not turn on whether communication took place within a
governmental agency proceeding, but rather whether there were sufficient public interests in
addition to procedural safeguards); Imperial, 7 16 A.2d at 248-5 1 ; McDermott, 56 1 A.2d at 1044-
46); Gersh, 434 A.2d at 551-52 (declining to extend privilege to cover statements made by a
witness te s t ie ing before the Baltimore City Community Relations Commission where
insufficient procedural safeguards existed).
[24] Richardson’s application of Dorn v. Mendelzon, 242 Cal. Rptr. 259 (Ct. App. 1987) to
interpret 19 GCA 5 2 105(b)(3) is misplaced. Dorn based its interpretation and application on the
fact that the alleged defamatory communication was to the California Board of Medical Quality
Assurance (“BMQA”) which is equivalent to the Guam Board of Medical Examiners (“GBME”).
See Dorn, 242 Cal. Rptr. at 262-63; 10 GCA 5 12203 (2005) (enabling act for the GBME).
Unlike GMH’s “peer review” committee, GBME and BMQA are state agencies with statutorily
vested investigatory and enforcement power. Id. For purposes of comparison to this case, we
note that the court in Dorn described its BMQA as:
an administrative agency created by the Legislature whose responsibilities include
enforcement of the Medical Practice Act and review of the performance of
physicians and surgeons licensed in California. It is an agency analogous to the
State Bar of California, with the duty to investigate complaints and the power to
initiate disciplinary proceedings against practitioners. Disciplinary actions taken
against a licensee are reviewable by application for writ of mandate.
Dorn, 242 Cal. Rptr. at 263 (citations omitted). The facts in this case are bereft of a description
as to what exactly the procedures and rules governing GMH’s peer review committee are, and
Richardson fails to explain how GMH’s peer review committee is legally analogous to the
BMQA in Dorn. See id. Without more facts in the record concerning the procedural safeguards
present in GMH’s peer review process that would make an absolute privilege palatable, we
cannot assume that GMH’s peer review is an “official proceeding” simply because GMH is a
governmental hospital.
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2.
Upholding Trial Court on Any Grounds Supported by the Record
[25] Richardson argues that the lower court decision “must be affirmed if it can be supported
on any ground finding support in the record.” Appellee’s Br. at 14 (Dec. 5, 2008) (emphasis
added). Although Richardson argues that this rule is mandatory on this Court, we have adopted
the discretionary rule. E.g., Har t v. Hart, 2008 Guam 11 7 15 (“[Tlhis court ‘may affirm the
judgment of a lower court on any ground supported by the record.’ (emphasis added); Ceasar v.
QBE Ins. (Int’l), Ltd., 2001 Guam 6 7 8; see also Chen v. Board of Trustees of Guam Memorial
Hosp. Authority, 1986 WL 68521 at *3 (D. Guam App. Div. 1986) (“This panel can uphold that
decision by the trial court on any ground which finds support in the record.”); Matter of Aguon,
1983 WL 30229 at * 3 (D. Guam App. Div. 1983) (‘We may uphold correct conclusions of law
even though they are reached for the wrong reason or for no reason, and we may affirm a correct
decision on any basis supported by the record.’ (quoting United States v. State of Washington,
641 F.2d 1368 (9th Cir. 1981)). This rule is consistent with our case law delineating the standard
to exercise discretion in reviewing arguments raised for the first time on appeal. See Taniguchi-
Ruth Assoc. v. MDI Guam Corp., 2005 Guam 7 7 80 (stating rule that this court may exercise
discretion to address an issue first raised on appeal “when the issue is purely one of law”).
[26] We reiterate that this court ‘may affirm the judgment of a lower court on any ground
supported by the record’ and thus exercise our discretion to address Richardson’s argument
raised for the first time on appeal. Hart v. Hart, 2008 Guam 11 7 15. Richardson’s argues that
we can affirm the trial judgment based on a theory that GMH’s peer review process should be
considered an “official proceeding” under Guam’s anti-SLAPP statute,13 and that this court
should therefore adopt the conclusion that the California Supreme Court made in Kibler v.
Northern Inyo County Local Hospital District. In its recent interpretation of its anti-SLAPP
l 3 The Citizen Participation in Government Act of 1998 is Guam’s anti-SLAPP (Strategic Lawsuits Against
Public Participation) statute. 7 GCA Ch. 17 (2005)
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statute in Kibler, the California Supreme Court found that communications to a hospital’s peer
review committee were absolutely privileged. Kibler, 138 P.3d at 196-97.
[27] While recognizing that California’s anti-SLAPP statute should be interpreted broadly, the
California Supreme Court still considered several factors in determining whether the hospital
peer review was an official proceeding. Id. at 196-97. The California Supreme Court found,
inter alia, the following facts significant: 1) California’s “Business and Professions Code sets out
a comprehensive scheme that incorporates the peer review process into the overall process for
the licensure of California physicians.”; 2) [ulnder the California Business and Professions Code
“acute-care facilities . . . must include in their bylaws a provision for conducting peer review.”;
3) under the California Business and Professions Code “a hospital must report to the Medical
Board of California (Medical Board), which licenses physicians, any hospital action that
‘restricts or revokes a physician’s staff privileges as a result of a determination by a peer review
body.”‘; 4) “a hospital granting or renewing a physician’s staff privileges must request a report
from the Medical Board indicating whether the physician has at some other medical facility
‘been denied staff privileges, been removed from a medical staff, or had his or her staff
privileges restricted.’ The failure to comply with this requirement is a misdemeanor.”; and 5)
“the Medical Board itself must maintain a historical record for each of its licensees that includes,
among other things, the ‘ [dlisciplinary information’ reported to the Medical Board resulting from
actions by hospital peer review committees.” Id. at 196-97 (second alteration in original)
(citations omitted). Richardson has failed to show similar legal requirements and protections as
described in Kibler to justify why GMH’s peer review process is an official proceeding under a
Kibler application of the anti-SLAPP statute.
[28] Moreover, the court in Kibler found that “hospital’s decisions resulting from peer review
proceedings are subject to judicial review by administrative mandate.” Id. at 197. The fact that a
hospital’s peer review decision is subject to judicial review led the court in Kibler to find a
Macris v. Richardron, Opinion
Page 15 of 19
hospital’s peer review “comparable to that of quasi-judicial public agencies whose decisions
likewise are reviewable by administrative mandate.” Id. at 197.
[29] While it may be possible to find that GMH’s peer review process rises to a level of a
quasi-judicial proceeding, and like California, there may be a similar “comprehensive scheme
that incorporates the peer review process into the overall process for the licensure of . . .
physicians,” Richardson has failed to meet the standard articulated in Har t since the record is
insufficient to support this alternative legal theory. See Har t v. Hart, 2008 Guam 11 7 15; see
e.g., Property Owners of Whispering Palms, Inc. v. Newport Paczjic, Inc., 33 Cal.Rptr.3d 845,
850 (Cal. App. 2005) (because record did not support alternative legal theory, decision was
remanded). Therefore we decline to uphold the trial court’s holding based on an alternative
application of Guam’s anti-SLAPP statute.
3. Privilege in an “Off~cial Proceeding”
[30] An ‘”official proceeding’ . . . (is one) which resembles judicial and legislative
proceedings, such as transactions of administrative boards and quasi-judicial and quasi-
legislative proceedings . . . .” Hackethal, 592 P.2d at 1 177-78 (quoting McMann v. Wadler, 1 1
Cal. Rptr. 3 7 , 4 1 (Dist. Ct. App. 1961)). Courts have extended privilege for proceedings similar
to judicial and legislative proceedings recognizing that:
There is no precise definition of what qualifies as a ‘judicial proceeding’ for the
purpose[] of the absolute privilege; but it clearly extends to tribunals other than
courts. The term is employed in a flexible fashion to embrace any governmental
proceeding involving the exercise of a judicial or quasi-judicial function,
including a wide variety of administrative boards, commissions, or other tribunals
which may engage in judicial or quasi-judicial action though not part of the court
system.
Imperial, 716 A.2d at 248 (quoting R.A. Smolla, Law of Defamation 5 8.03[3][a] (1986, 1996
Supp.)). The extension of privilege to “official proceedings” (such as quasi-judicial proceedings)
derives from common and statutory law recognizing the strong public policy in favor of
protecting witness and testimonial speech. E.g., Gersh, 434 A.2d at 548-52; Hackethal, 592 P.2d
at 11 81-85 (Tobriner, J., dissenting). However, courts are cognizant of the need to balance
Macris v. Richartison, Opinion
Page 16 o f 19
competing policy interests between the benefits of certain speech in the interest of the public and
the need to protect individuals from defamation. See, e.g., Gersh, 434 A.2d at 549.
[31] Maryland’s highest court has thoroughly and persuasively examined the history and
competing policies behind the extension of witness privilege for quasi-judicial proceedings.
E.g., Gersh, 434 A.2d 547 passim; Offen, 935 A.2d 719 passim; Imperial, 716 A.2d at 248;
McDermott, 56 1 A.2d at 1044-45. In Gersh, the court recognized that:
[mlost American courts which have extended absolute immunity to witnesses
testifying in other than strictly judicial, in-court settings have first assured
themselves that in such settings there are sufficient judicial safeguards so as to
minimize the likelihood of harm to potentially defamed (or otherwise injured)
individuals who would have no legal remedy.
Gersh, 434 A.2d at 549. In interpreting 19 GCA 5 2105(b)(3), we also find that reviewing the
qualities of judicial and legislative proceedings in 19 GCA 5 2105(b)(l) and (2) reveals the
importance of procedural safeguards in order for a proceeding to be “official” and enjoy a similar
privilege. See, e.g., Hackethal, 592 P.2d at 1 177-78 & n.3; King, 104 Cal. Rptr. at 417 (“The
Legislature has available to it methods for preventing or minimizing false complaints. . . . [Flor
example[,] . . . making it a misdemeanor to falsely report [a] crime to a police officer.”). The
judicial and legislative proceedings stated in sections 2105(b)(l) and (2) have safeguards to deter
individuals from making false claims and provide those who are accused an opportunity to
defend themselves. See, e.g., Economou, 438 U.S. at 513-14 (extending absolute immunity to a
federal agency’s adjudication because it “share[d] enough of the characteristics of the judicial
process”); 48 U.S.C.A. 5 142 1 b(e) (West 2003) (due process in judicial proceeding); 5 GCA 5
34 1 19(d) (2005) (burden of proof required to establish paternity); GRE 603 (oath requirement in
judicial proceeding); 2 GCA 5 31 12 (2005) (consequences for false testimony in legislative
proceeding). l 4
14 See also 9 GCA 5 52.15 (2005) (consequences for false testimony in judicial proceeding); 9 GCA $ 5 52.20
and 52.30 (2005) (consequences for false statements made in judicial proceeding). Particularly instructive is 10
GCA 5 12210, which details the required procedures for the Guam Board o f Medical Examiners to take disciplinary
action. 10 GCA 5 122 10 (2005). Section 12210(c) states in part:
Macris v . Richardson, Opinion
Page 17 of 19
[32] In Imperial v. Drapeau, Maryland’s highest court explained how absolute privilege
would not be extended if there were not sufficient procedural safeguards to protect individuals
from the consequences of defamation. 716 A.2d at 248. The Imperial court found it significant
that “[rlequisite procedural safeguards were present” in the proceeding and that such proceeding
should be “‘at least as functionally comparable to a trial before a court . . . .”‘ Id. at 249 (quoting
Odyniec v. Schneider, 588 A.2d 786, 792 (Md. 1991)). In Imperial, the court reasoned that
“‘[tlhe public benefit to be derived fiom testimony at Commission hearings of this type [wals not
sufficiently compelling to outweigh the possible damage to individual reputations to warrant
absolute witness immunity.”‘
Id. at 248 (quoting Gersh, 434 A.2d at 551) (first alteration in
original).
[33] In order to determine whether extension of absolute privilege is warranted, Maryland’s
Gersh v. Ambrose and its progeny have developed and applied a two-part test examining the
degree of public interest and the extent of procedural safeguards in place to protect individuals
fiom harm. See, e.g., Offen, 935 A.2d 7 19 passim; Imperial, 7 16 A.2d at 248; McDermott, 56 1
A.2d at 1044-45″; Gersh, 434 A.2d at 551-52.16 To determine whether statements in quasi-
The procedural provisions should provide for investigation of charges by the Board; notice of charges to
the accused; an opportunity for a fair and impartial hearing for the accused before the Board or its
examining committee; an opportunity for representation of the accused by counsel; the presentation of
testimony, evidence and argument; subpoena power and attendance of witnesses; a record of proceedings;
and judicial review by the courts in accordance with the standards established by the jurisdiction for such
review.
10 GCA 5 12210(c) (emphases added). GBME shares with GMH’s peer review proceedings the same public
interest to ensure the quality of care from health professionals. It is clear from 10 GCA 5 122 10(c) that GBME’s
proceedings have procedural safeguards in place that are similar to legislative and judicial proceedings under 19
GCA 5 2105(b)(l) and (2). The record does not show what, if any, procedural safeguards exist for GMH’s peer
review.
l 5 See McDermott:
In Gersh, we noted examples of administrative proceedings not giving rise to absolute privilege: E.g.,
Hackethal v . Weissbein, 24 Cal. 3d 55 (1979) (proceedings before judicial commission of private medical
society not an official proceeding authorized by law; no legal requirement that witnesses take an oath
therefore no threat of perjury); Blakeslee & Sons v. Carroll, 64 Conn. 223 (1894) (investigating
committee had no judicial ofiice; and its decisions and subpoenas were unenforceable, the testimony non-
compellable); Mills v . Denny, 245 Iowa 584 (1954) (city council proceedings not under able and
controlling influence of learned judge who may reprimand, fine, punish, and expunge impertinent
material fiom record); Bienvenu v . Angelle, 254 La. 182 n. 1 (1 969) (overruled by Gonzales v. Xerox
Corp., 320 So. 2d 163 (La. 1975)) (statements to Civil Service investigator not under oath, not subject to
Macris v. Richardson, Opinion
Page 18 of 19
judicial or quasi-legislative proceedings are within the “ambit of the absolute privilege,” we
adopt Maryland’s two part test which evaluates: “(1) the nature of the public function of the
proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of
defamatory statements.” Imperial, 716 A.2d at 248 (quoting Gersh, 434 A.2d at 551-52).
[34] When there is a significant public interest and sufficient procedural safeguards are in
place analogous to judicial and legislative proceedings under 19 GCA § 2105(b), then the
extension of absolute immunity is justified. See 19 GCA § 2105(b); see also Economou, 438
U.S. at 5 13-14; Gersh, 434 A.2d at 551-52. This test balances the public interest in facilitating
the reporting of health professionals’ misconduct while ensuring sufficient safeguards will
minimize the potential harmful impact of a false accusation. In this case, we are unable to apply
the Maryland Test because the record lacks sufficient information regarding the procedural
safeguards of GMH’s peer review process.
IV. CONCLUSION
[35] We find that the qualified privilege under GRE 417(a)(3) does not apply to
communications intended to initiate a hospital peer review proceeding. We also find that where
a communication intends to prompt an official proceeding which benefits the public, such
communication enjoys a similar degree of privilege as a communication during an official
proceeding under 19 GCA 8 2105(b)(3). Moreover, we find that there is insufficient evidence in
the record to support the trial court’s conclusion that GMH’s peer review process is an “official
sanctions); Mundy v. Hoard, 216 Mich. 478, 185 N.W. 872 (192 1) (irrelevant hearsay statements made by
voluntary witness before hearing of city police committee not absolutely privileged); Elder v. Holland,
208 Va. 15 (1967) (not all administrative proceedings warrant absolute privilege; superintendent of State
police lacked subpoena power; uncertain whether witnesses subject to perjury; no evidentiary rules
followed); Engelmohr v. Bache, 66 Wash. 2d 103, cert. dismissed, 382 U.S. 950 (1965) (proceeding
before study group appointed by S.E.C. merely [an] investigatory hearing not conducted in manner
essential to constitute quasi-judicial administrative proceeding).
561 A.2d at 1045 n.2 (alterations to citations) (some citations omitted).
16 See also Saavedra v. City of Albuquerque, 859 F . Supp. 526, 532 (D. N.M. 1994) (“To justify protecting
quasi-judicial officers with absolute immunity, therefore, the procedural safeguards in place must be sufficient to
correct or prevent violations of due process rights of which a reasonable person would have known, or decisions
made in bad faith or motivated by malice.”).
Macris v . Richardson, Opinion
Page 19 of 19
proceeding” under 19 GCA 5 2105(b)(3). To determine whether statements in quasi-judicial or
quasi-legislative proceedings are within the “ambit of the absolute privilege,” we adopt
Maryland’s two-part test which looks at the nature of the public function of the proceeding and
the adequacy of procedural safeguards which will minimize the occurrence of defamatory
statements. We do not reach whether Richardson would prevail on summary judgment based on
other grounds, since the trial court granted summary judgment solely on the finding of absolute
privilege under 19 GCA 5 2105(b)(3). Therefore we VACATE the judgment and REMAND to
the trial court to make findings consistent with this opinion or make a summary judgment ruling
on the remaining possible grounds.
Associate Justice
KATHERINE A. MARAMAN
Associate Justice
whm: Robert J. Torrer
ROBERT J. TORRES
Chief Justice