Gutherie v. Board of Trustees, GGRF

Opinion

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TAKAKO B. GUTHRIE AND JOSEPH A. Superior Court Case No. SP0094-20 GUTHRIE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, DECISION AND ORDER RE: Petitioners/Plaintiffs, MOTION FOR RECONSIDERATION of AMENDED DECISION RE: RECUSAL vs. OF COURT UNDER 7 GCA §6107

BOARD OF TRUSTEES OF THE GOVERNMENT OF GUAM RETIREMENT FUND, Respondents/Defendants

INTRODUCTION

This matter is before the Honorable Judge Pro Tempore John Thomas Brown ("Judge

Brown"), to respond to a Request for Reconsideration by Petitioners of Judge Brown's denial of

their Statement of Objection to the hearing by Judge Pro Tempore Fitzpatrick of their action as

captioned. Their Request for Reconsideration was filed by way of a CVR 7.1 FORM l, citing to

GRCP Rules 60(b) and 59(c). Petitioners/Plaintiffs are represented by attorney Samuel S. Teker.

BACKGROUND

On July 10, 2020, Petitioners/Plaintiffs Filed a Petition for a Preemptory (sic) Writ of

Mandate, Alternatively, Complaint for Declaratory and Injunctive Relief; seeking to obtain

certain spousal retirement benefits claimed to be due them from the Respondents. Judge

Pagelof 12 Fitzpatrick was appointed as a Judge Pro Tempore to hear the case on May 20, 2021. On June 7,

2021, Petitioners Takako B. Guthrie and Joseph A. Guthrie (collectively herein, "Objectors")

timely filed a Statement Objecting to the Competency of Judge Pro Tem Maria Fitzpatrick to

Hear This Case (herein, the "Objection Statement"). In tum, Judge Fitzpatrick timely Med' an

Answer to Petitioners' Statement of Disqualification on June 16, 2021 (herein, the

"Disqualification Answer"). On June 18, 2021, John Thomas Brown was appointed as Judge J

Pro Tempore "for the purpose of deciding the issue of Judge Pro Tempore Maria G. Fitzpatrick's

competency to hear this case". On July 16, 2021 the Court issued its Amended Decision and

Order Re: Recusal of Court under 7 GCA §6107, denying the recusal request ("Amended

D&O"). On August 2, 2021, Petitioners filed the referenced CVR 7.1 FORM l Request for

Reconsideration, together with their Memorandum of Points and Authorities in Support of

Motion for Reconsideration (herein, "Memorandum").

1. THE "ELEPHANT IN THE ROOM"

Petitioners' challenge of Judge Fitzpatrick weighed heavily on charges of actual and

apparent bias, but their Objection Statement merely made allusions or bare conclusions to

various unsubstantiated claims of prejudice and bias, without the specificity required in 7 GCA §

6107: a party wishing to disqualify judge must file "a written statement objecting to the hearing

of such matter or any trial of any issue of fact or law in such action or proceeding before such

I Section 6107 requires: "Within ten (IO) days after the service of such statement as above provided, or ten (10) days after the filing of any statement, whichever is later in time, the Justice or Judge alleged therein to be disqualified may file with the clerk his or her written answer admitting or denying any or all of the allegations contained in such statement and setting forth any additional fact or facts material or relevant to the question of his or her disqualification."

Page 2 of 12 Justice or Judge, and setting forth the fact or facts constituting the ground of the disqualification

of such Justice or Judge." ( Italics added) Cr itically, "[t]he statement of a par ty ohiecting to the

J us tic e or J udge on the gr ound of his or her dis qualific ation s hall be pr es ented at the ear liest

practicable opportunity after his or her appearance and discovery of tnefacts constituting the

ground of the Justice's or Judge's disqualification...." Id. Factually critical, Petitioners'

Objec tion Statement admitted they had k nown of the s pec ific s for a long time: "[t]his Amended

Declar ation [the missing Exhibit l]is dated Apr il 26, 2019 and is signed under penalty of per jur y

by Guthrie." (Objection Statement, p. 6)

Recognizing their obligation to timely set for th in their Objection Statement actual facts

constituting gr ounds for disqualification, Petitioner s explicitly said it that would be pr ovided in

an attachment:

"Accompanying this Statement Objecting Io the Competency of./udge Pro Tem Maria F i t z p a t r i c k T o H e a r T h i s C a s e , i s a n E x h i b i t l . E x h i b i t l i s e n t i t l e d Amended De c la r a tio n Qf ./o s e p h A. Gu th r ie in Su p p o r t o f Mo tio n to Dis q u a lijj/ M a r i a F itz p a tr ic k ( h e r e i n a fte r , " A l n e n d e d D e c l a r a ti o n " ) . Review of Exhibit I discloses that, during Guthrie's employment at die OAG, Judge Fitzpatrick subjected Guthrie to public h u milia tio n , E x h ib it l- P a g e l- 2 ; p u b lic ly e x p r e s s e d h o s tility to G u th r ie , E x h ib it l, p a g e 2 , e n c r o a c h e d o n G u th r i e ' s a s s i g n e d w o r k , E x h i b i t l , p a g e 2 - 3 , u n d e r mi n e d G u th r i e ' s work, Exhibit l, page 3, wrote and disseminated a written epigram disparaging Guthrie to fellow office mates, Exhibit l, page I; excluded Guthrie from social occasions and a lie n a te d th e a ffe c tio n s Gu th r ie ' s fr ie n d s , E x h ib it l, p a g e 3 , a n d d is r e s p e c te d Gu th r ie when she lied to him to circumvent the AGO leave policy, Exhibit l, pages 5-6. Even after Guthrie went into private practice after leaving the Office of Attorney General, Judge Fitzpatr ick under mined Guthr ie at the law fir m wher e he was employed, Exhibit l, page 4." (Objection Statement, p 6.)

B u t th e r e w a s n o s u c h a tta c h me n t w h e n th e Ob je c tio n S ta te me n t w a s file d o n J u n e 7 ,

202] nor when Recusal Judge sought it to pr epar e his amended decision filed July l 6th, weeks

la te r . T h e imp o r ta n c e o f th e mis s in g fa c ts w a s n o t lo s t o n P e titio n e r s : "Mis s in g E x h ib it l s e ts

Page 3 of 12 forth the history of Judge Fitzpatrick's in-collegial behavior towards Objector Joseph A.

Guthrie, going all the way back to the l 980s." (Memorandum, p 2.). Petitioner's attorney

admits "[t]he Missing 'Exhibit l' is certainly the 'elephant in the room'...." (Id, p 1.)

Petitioners' attorney's attempt to explain away the timely reveal of Exhibit l in their Motion for Reconsideration is incredible. He said "the undersigned attorney did not tile the Missing Exhibit to avoid scandal." (Memorandum, fn. 2, p 5.)

"June 7, 2021 was the deadline for the Objectors to file their Statement Objecting to the 3 Competency of Judge Pro Tern Maria Fitzpatrick.... The undersigned attorney was aware that Judge Brown's decision of this matter would be posted on the Guam Judiciary's website as well as being a public document for all and sundry to see. The undersigned attorney felt that facts asserted in Missing Exhibit l were of such a nature that they would subject Judge Fitzpatrick to obloquy were they to made part of the public record.

"The undersigned attorney has always enjoyed good relations with Judge Fitzpatrick, and did not want to offend her, embarrass her, or to hurt her. Therefore, on the date of filing of the Objection Statement and at the last moment, the undersigned attorney could not bring himself to file the Missing Exhibit l as an exhibit. Instead, the undersigned attorney filed the Objection Statement bereft of the Missing Exhibit l, even thought it was replete with references to the Missing Exhibit l. The undersigned was contacted by the Clerk of Court Danielle Rosete and was asked about the Missing Exhibit 1 and the undersigned told her that it would not be filed.

"... The undersigned attorney thought that after the Objection Statement was filed, even without the Missing Exhibit l, there would be no way Judge Fitzpatrick would attempt to remain on the case, in light of her evident animus toward Objector Joseph A. Guthrie.

But Attorney Teker finally, on August 2, 2021, relented of his concern for Judge Fitzpatrick's

embarrassment and made Exhibit l public, along with the Motion for Reconsideration.

with full knowledge of the facts on which Petitioner's Objection Statement rests,

Petitioners held back revelation of them until more than two weeks after the outcome of the

recusal decision was made and issued, on July 16, 2021 .

"In Van Dox v. Superior Court of Guam, this court held that '[w]ith respect to the statutory provision requiring that disqualification be urged at the 'earliest practicable

Page 4 of 12 opportunity,' the intention 'is clear that failure to comply with the provision constitutes a waiver."' 2008 Guam 7 1] 45 (quoting Camineili v. Pac. Mai. Life Ins. Qr Cal., 139 P.2d 930,933 (Cal. l 943)). This rule "rests on the principle that a party may not gamble on a favorable decision." (People v. Pariah, 107 P.3d 790, 824 (Cal. 2005); quoting Ureas v. Harris Farms, Inc., 285 Cal. Rptr. 659, 664 (Ct.App. l99l)). People v. Win, 2020 Guam 17, 1]26.

As incredible as the personal drama revealed, is the admission that Petitioners could not

distinguish between (l) the "fact or facts material or relevant to the question of his or her

disqualification" meant to be set forth in the Objection Statement (7 GCA § 6107), and, (2) the

facts to be proved at a hearing. (Memorandum p. 5.) "The undersigned attorney did not believe,

based on the language of 7 GCA § 6107, that the facts set forth in the Objection Statement were

intended by the Legislature to be treated as evidence." (Id.) He said, it was his understanding

that '"§ 6l07's requirement that a party set forth "the fact or facts constituting the ground of the

disqualification of such Judge' only pertained to affording the challenged judge with nolie Qr

rhefacls presenting grounds for the disqualification." (Italics added, id.) He wants the Court to

believe suggested facts are not facts unless they are evidence: "the undersigned attorney

believed that it was the facts set forth in Missing Exhibit l that were the facts which would be

presented as evidence at a hearing subsequent 10 Ihe./iling Qr the challengedjudge 's Answer."

(Bold italics in original, simple italics added. ld.) There is no obligatory hearing contemplated

for an appointed Recusal Judge to determine competence when the record is clearly devoid of

substantiating facts and a mandatory verification.2

2 See Johnny, 2006 Guam 10 11 14 "Put simply, it is inefficient to force parties to wait unnecessarily for the resolution of a statement of objection that would ultimately be rejected for failure to comply with the statutory requirements."

Page 5 of )2 2. MISTAKE

Petitioners further argue for relief "based on a party's "mistake", citing GRCP Rule 60(b)(1).

But the application of Rules of Civil Procedure in this context, do not apply:

"Although styled as a motion, we treat a motion for judicial disqualification as a written statement of objection, which is governed by 7 GCA § 6107, and not by the usual law and rules governing motion practice. We treat a motion for judicial disqualification as a written statement of objection, which is governed by 7 GCA § 6107, and not by the usual law and rules governing motion practice. See Johnny, 2006 Guam 10 Guam 1111 3, 9." (Van Dex, supra, 11 16, italics added.)

Petitioners state their basis for the claim of mistake is,

"the undersigned attorney's mistaken belief that the Objection Statement was NOT evidence, and the undersigned attorney's mistaken belief that Judge Fitzpatrick would recuse herself Had the undersigned attorney believed that the Objection Statement was evidence, and had the undersigned not cared for the feelings or reputation of a fellow lawyer, the undersigned would have fled and attached Exhibit I to the Objection Statement, thus allowing the factual averments in Exhibit l to substantiate the factual averments made in the Objection Statement." (Memorandum, p 6, capitalization in original, italics added.)

These excuses are not mistakes. They were deliberater, They are miscalculated errors of

judgment. He misjudged Judge Fitzpatrick and the disclaimers she made in her Answer to the

Objection Statement, and he tortuously erred in his interpretation of "facts", "evidence", and §

6107. The Deluxe Black's Law Dictionary, 6th Ed., West Publishing, defines' mistake':

"Mistake. Some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. A state of mind not in accord with reality.

3 "[O]n the date of filing of the Objection Statement and at the last moment, the undersigned attorney could not bring himself to file the Missing Exhibit l as an exhibit". (Memorandum, p 2.) After the Amended D&O was issued, though, he overcame his care "for the feelings or reputation of a fellow lawyer" and made public the "missing Exhibit l". The rule of § 6107 requiring a statement of objection to a judge's hearing of a matter to set forth the fact or facts constituting the ground of the disqualification at the earliest practicable opportunity "rests on the principle that a party may not gamble on a favorable decision." People v. Win, supra, 2020 Guam 17, 1126.

Page 6 of 12 "A mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of the judgment, upon facts."

An analogue description of how a claim of "mistake" is to be judged is in the Guam procurement

regulations:

"Correction or withdrawal of a bid because of an inadvertent, nonjudgmental mistakes in the bid requires careful consideration to protect the integrity of the competitive bidding system, and to assure fairness. If the mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of a nonjudgmental mistake is permissible, but only to the extent it is not contrary to the interest of the territory or the fair treatment of other bidders." 2 GAR § 3l09(m)(4)

3. FINANCIAL INTEREST

Petitioners' Objection Statement had asserted "Judge Fitzpatrick has a 'financial interest' in The money in the possession of the Retirement Fund" (p 5), and the Court's Amended D&O denied that a GRFF member had any interest in a particular asset of the fund (p 13, all emphasis added). Here, Petitioners again misinterpret the meaning of a financial interest. They assert

"... 7 GCA §6l05(d)(4) states, in relevant part, "Financial interest means ownership of a legal or equitable interest, except that: (A) Ownership in a mutual or common investment fund that holds securities is not a financial interest in such securities" ([original] emphasis added). It excludes investment funds and mutual funds from the ambit of its definition of "financial interest" GGRF DO NOT hold legal ownership of shares [of] the property of the GGRF (as they would in an investment fund or mutual fund).... Judge Brown committed clear error in holding that Judge Fitzpatrick did not have a financial interest in the GGRF." (Memorandum, p 8.)

Petitioners' Memorandum places emphasis on the wrong words to reach their desired . interpretation. The correct emphasis is that "Ownership Ill a mutual or common investment

fund that holds securities is not afnancial interest in such securities"(7 GCA §6l05(d)(4); all

emphasis added). An ownership interest in a mutual or common investment fund isclearly not

a financial interest. As elaborated in the Amended D&O (pp 12-18), the Guam Government

Retirement Fund is a fund that holds securities in its name, thus is not a disqualifying financial

Page 7 of 12 interest, the Plans and provisions of the GGRF are in accord with the analysis in the D&O. The

Amended D&O was corroborated by the analysis of the Committee on Codes of Conduct of the

Judicial Conference of the United States' Committee on Codes of Conduct Advisory Opinion

No. 106: Mutual or Common Investment Funds (March 2011) (see, pp 16-17 of the Amended

D&o).

4. NECESSITY

Petitioners reason that "[i]nasmuch as Judge Brown disallowed Judge Fitzpatrick's claim

of defense of necessity, the stage was set for Judge Brown finding that Judge Fitzpatrick is

disqualified." However, Petitioners could only act upon that stage if Judge Brown had found

facts in the Ohiection Statement that were credible grounds for disqualification. As the

Amended D&O instead found,

"[t]he distances between Objectors' conclusory statements and adduced facts are too

tenuous, if existent. 'We would not want judges to construe our decision in Dizon to

mean that they should distance themselves from cases at the slightest suggestion [of

impartiality]'." (Ada, supra, 11 15; Amended D&O, p 28.) Judge Brown Ends that Judge

Fitzpatrick is competent to hear the captioned matter."

5. VERIFICATION DEFICIENCY

Finally, Petitioners admit they "failed, as required by 7 GCA 6107, to verify the

Objection Statement pursuant to 6 GCA 4308. This failure rendered this Ohiection Statement

legally insufficient." But they here do not capitulate: "The question is what is the proper remedy

for this failure." The Supreme Court has answered that question in the Van Dox decision:

Page 8 of 12 "The answer must be "verified in the manner prescribed for the verification of pleadings." 7 GCA § 6107. If an answer is not verified, then the answer is inadequate and may be disregarded. (finding that statements of objection may be stricken or disregarded if they are not properly verified), Petition, Ex. 2(A)(5), Decision & Order, Akimolo v. Gutierrez, CV lot 1-02, at 5-6 (Guam Super. ct. Dec. 22, 2005) (striking statement of objection because it was not properly verified)." (Van Dex, supra, 1] 22.)

6. JURISDICTION.

Having responded to Petitioners' reasoning to substantiate a reconsideration of the D&O

(Memorandum p. I), Recusal Judge Brown nevertheless questions Petitioners' jurisdiction to

bring this motion to reconsider Recusal Judge's decision on judicial competence in the first

place. Petitioners framed their arguments under authority of GRCP Rules 60(b) and 59(c) and on

CVR 7.1 FORM l, the prescribed form for such particular purposes. "GRCP Rule 60(b)(l)

provides that the Court can relieve a party from the consequences of a proceeding based on a

party's "mistake" (Memorandum pp 5-6), and, "Rule 59(e) provides for motions to "alter or

amend judgment" (id, pp 6-7). However, 7 GCA § 6107 admits of no such remedies.

The scheme of the judicial disqualification rules is described in 7 GCA Civil Procedure,

Chapter 6, Judicial Officers, Justices and Judges. Section 6105 sets out certain conditions that

could disqualify a judge (or justice) from hearing a matter, and places responsibility for

detennining if any such condition exists on the judge in the first instance. Section 6106 requires

a judge who "shall have knowledge of any fact or facts which, under the provisions of 6105 of

this Chapter, disqualify him or her to declare the same in open court". Section 6107 then

provides procedures when a judge has not made a § 6]06 declaration. Salient here is that:

"No Justice or Judge who shall deny his or her qualification shall hear or pass upon the question of his or her own disqualification, but in every case the question of the Justice's

Page 9 of 12 or .Nudge's disqualification shall be heard and determined by some other Judge.

"If such Judge admits his or her disqualification or if it shall be determined alter the hearing that he or she is disqualified, the action or proceeding shall be heard and determined by another Judge of the Superior Court who is not disqualified."

Finally, Section 6l08(a) instructs, "When there is no Judge qualified or available to hear

a cause, action or hearing in the Superior Court, the Presiding Judge shall request the Chief

Justice to appoint a Judge pro tempore to hear the matter." Consistent with 7 GCA § 6108, by

Order of Guam's Chief Justice, "[a]t the request of Presiding Judge Alberto C. Lamorena III, on

the basis that there is no available judge of the Superior Court of Guam to pass on the matter of

the disqualification" of Judge Fitzpatrick", Judge Brown was appointed as a Judge Pro Tempore

of the Superior Court with a limited, spec;/ic brief: "for the purpose of deciding the issue of

Judge Pro Tempore Maria G. Fitzpatrick's competency to hear this case". As mentioned in the

Background above, Judge Brown has indeed decided and ordered that Judge Fitzpatrick is

competent to hear this case, and, the Objection Statement of Petitioners was substantively as well

as formally defective. (Amended D&O, pp 28-29.)

Title 7 GCA Civil Procedure, Chapter 6 does not contemplate any appeal or

reconsideration of the decision of the recusal judge. Petitioners' would have the Court do again

what it did first time, but based on further arguments and additional facts and circumstances.

"Although styled as a motion, we treat a motion for judicial disqualyicalion as a written

statement of objection, which is governed by 7 GCA § 6107, and not by the usual law and rules

governing motion practice. See Johnny, 2006 10 11113, 9", Van Dox v. Super. Co. (Alcorn) 2008

Guam 7, 1] 16. Also, see People v. Tories, 2008 Guam 26: "[t]he power of contempt exercised

Page 10 ofl2 by the Superior Court is a power inherent in all courts to enforce obedience, something they must

possess in order to properly perform their functions. Historically, a court's contempt Powers

have been described as Sui generis -neither civil actions nor proseculionsfor of%nses, within the

ordinary meanings of those terms." (Emphasis added.)

Having performed the task assigned to him, Judge Brown feels he has depleted his

authority and accomplished his task. If so, the underlying matter would have now fallen back

into Judge Fitzpatrick's hands. There would be no right of appeal, let alone right to

reconsideration within the scheme of Title 7, Chapter 6 Guam Code Annotated.4

Nevertheless,

"[A] party may seek review of a judge's decision to strike a statement of objection through a writ proceeding." People v. Johnny, 2006 Guam 10 1] 21. A writ of prohibition may be granted if a tribunal acted in excess of its jurisdiction, such as improperly refusing to refer a statement of objection to another judge. Id. (citing People v. Super. Co. (Laxmana), 2001 Guam 26 1] 16). A writ petition seeking review of the denial of a request for disqualification is reviewed for an abuse of discretion." Van Dox, supra,1128.

And, "When appealing a denial of a motion for a judge's disqualification after final judgment, this court reviews the decision for an abuse of discretion. The interpretation of the recusal statutes is reviewed de novo". Long-lerm Credit Bank v Superior Court 2003 Guam 10 1]28 (citations omitted).

CONCLUSION

Having had a second reading of and considered the submissions of Petitioners and its

Motion for Reconsideration, the Court has again determined that Petitioners have failed to meet

the time limits required in 7 GCA § 6107 to file their Objection Statement at the earliest

4 But see, Judicial Disqualification: An Analysis of Federal Law, 3rd Edition, Federal Judicial Center, Chapter V, Disqualification on Appeal https://www.fic.nov/content/348974/iudicial-disqualification- analvsis-f`ederaI-law-lhird-edilion.

Page ll of 12 opportunity, and have instead knowingly gambled upon a late filing, and lost. As well,

Petitioners' failure to properly verify their own Objection Statement, in the face of Petitioners'

reiterated warnings that Judge Fitzpatrick must faithfully verify any statements she may make or

documents she submits, is inexcusable cause for the Court to disregard Petitioners' formally

deficient Objection Statement. And, for the reasons set out herein above, Petitioners have not

cured the substantive inadequacies of the original Objection Statement. Lastly, and perhaps of

first importance, the Court finds that it lacks jurisdiction to hear Petitioners' motion for

reconsideration.

Petitioners' Motion for reconsideration of the Amended Decision re: Recusal is hereby

denied.

SO ORDERED: A\l5122l!Z1

~.1 g ¢~ ommLE JUDGE PRO TEMPORE Q§N THOS. BROWN

Page 12 ofl2