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By Brad Wong

HAGÅTÑA, Guam (May 5, 1999 - Pacific Daily News)---For residents anxious for word about when the island’s gubernatorial runoff election will be held, it is time to wait.

The reason: The 9th U.S. Circuit Court of Appeals in San Francisco must decide whether it will consider Governor Carl Gutierrez’s petition to rehear a case about whether he received a majority of votes in November’s election as the Organic Act requires.

Circuit Court spokeswoman Gayle Grimes said yesterday that the federal appeals body received the governor’s request for a review on Friday in San Francisco.

"Our court is technically not done with it!" said 9th Circuit spokesman Mark Mendenhall. "Our court can only issue a mandate only after its done considering it."

That mandate would instruct the U.S. District Court on Guam to set a date for the gubernatorial runoff or have the Guam Election Commission do so.

On April 20, the San Francisco federal appeals court upheld, by a 3-0 vote, U.S. District Judge John S. Unpingco’s decision that Gutierrez failed to win a majority of votes in the gubernatorial election.

Gutierrez appealed to the 9th U.S. Circuit Court of Appeals, but a three-judge panel voted unanimously that the phase "votes cast" applies to "any election."

That would cover all ballots cast in the November election.

At the heart of the matter is whether blank ballots for the gubernatorial election should be counted as votes cast. If they are not counted, Gutierrez would have a majority of votes and could be declared the winner of the November election.

But if they are counted, it would favor Gutierrez’s opponent, Republican former Governor Joseph Ada, because Gutierrez would not have earned a majority of votes.

In the petition, Gutierrez is asking the court to reconsider the case, arguing that the Organic Act confines itself to votes cast in the gubernatorial election.

"(The Organic Act) says nothing about votes cast for any other office and nothing whatsoever about ballots," Gutierrez argued in his petition.

Mendenhall said the original three-judge panel will consider Gutierrez’s request. But it only takes one of those individuals to request a review from the courts 21 judges. "It only takes one to trigger the process," he said.

After April 20, there was a 21-day window for any party to request a review, Mendenhall said.

Mendenhall said the court decides 4,500 cases a year. Only a small percentage of them are reviewed again. He added that two important criteria for review are if the court’s decision contradicts a previous ruling from its judges, or if there is a major or substantial issue that needs to be addressed.

If the judges decide to reconsider a case, Mendenhall said, then it could be another six months to a year before the matter is resolved because the court can accommodate only so many cases each year.

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