Guthrie v. Board of Trustees of GGRF

• Court: Superior Court of Guam
• Decided: July 16, 2021
• Docket: SP0094-20
• Status: Unknown

Opinion

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BY

IN THE SUPERIOR COURT OF GUAM

TAKAKO B. GUTHRIE AND JOSEPH A. Superior Court Case NO. SP0094-20 GUTHRIE, INDNIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AMWAEA DECISION AND ORDER RE: RECUSAL Petitioners/Plaintiffs, OF COURT UNDER 7 GCA §6107

vs.

BOARD OF TRUSTEES OF THE GOVERNMENT OF GUAM RETIREMENT 's Respondents/Defendants

INTRODUCTION

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

Brown"), for the limited purpose of deciding the issue of the competency of Judge Pro Tempore

Maria G. Fitzpatrick ("Judge Fitzpatrick") to hear the captioned matter, as alleged by Takako B.

Guthrie and Joseph A. Guthrie, Indiv idually and on Behalf of All Others Similarly Situated,

Petitioners, i n their written Statement Objecting to Competency, and seeking recusal 015 Judge

Fitzpatrick. Petitioners/Plaintiffs are represented by attorney Samuel S. Taker.

BACKGROUND

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

Page 1 of 29 Mandate; Alternatively, Complaint for Declaratory and Injunctive Relief; seeking to obtain

certain spousal retirement benefits claimed to be due them from the Respondents. On May 10,

2021, Presiding Superior Judge Alberto C. Lamorena III, wrote Chief Justice F. Philip Carbullido to request "that a Judge Pro Tempore be appointed in this case because all the

Superior Court Judges, including [himself, have disqualified themselves pursuant to 7G.C.A. §§

6105 and 6106." Judge Fitzpatrick was appointed as a Judge Pro Tempore in this case on May

20, 2021. On May 24, 2021, Judge Fitzpatrick filed a Form Three - Disqualification Notice of

Potentially Disqualifying Facts (herein, the "Disqualification Notice"), in the form and substance

approved by the Guam Supreme Court in Promulgation Order No. 13-003-01 (herein, "Form

Three"). Promulgation Order No. 13-003-01 explicitly applies "in all cases where 7 GCA §

6105 or 7 GCA § 6106 are implicated". While §§ 6105 and 6106 provide, respectively, the

grounds for a judge's disqualification, and the duty to disclose a disqualifying condition, § 6107

spells out the procedure whereby a party may pursue disqualification of a Judge:

Whenever a Justice or Judge who shall be disqualified under the provisions of this Chapter to sit or act as such in any action or proceeding pending before him or her neglects or fails to declare his or her disqualification in the manner provided by this Chapter, any party to such action or proceeding who has appeared therein may present to the court and file with the clerk a written statement objecting to the hearing of such matter setting forth the fact or facts constituting the ground of the disqualification of such Justice or Judge.

As required of the Form Three notice, Judge Fitzpatrick acknowledged certain Grounds

of Disqualification (7 GCA § 6105), acknowledged certain facts, some of which werepotentially

within the purview of § 6105, and expressed her view that "I do not believe [those facts]

disqualify me from sitting or acting as the judge in this case".

Page 2 of 29 Judge Fitzpatnlck's Disqualification Notice cited the following three unelaborated

potentially disqualifying facts :

1. I am retired from the Government of Guam and I am receiving a pension. My husband is my beneficiary.

2. I worked at the Office of the Attorney General for 21 years and during portions of that time Joseph A. Guthrie also worked there.

3. During the period Joseph A. Guthrie was Chief Deputy he filed a lawsuit to stop about 6 attorneys ft-om getting increments. I was one of the attorneys. Upon information and belief the case was eventually dismissed. We received our increments and attorney fees.

1. Consistent with the mandated substance of Form Three, the Disqualification Notice

advised: "[a] party who wishes to pursue my disqualification based on these facts must file their

objection to competency pursuant to 7 G.C.A. § 6107 within fourteen (14) days of the Blind of

this notice for such objection to be considered timely." Accordingly, on June 7, 2021, fourteen

(14) days after filing of Judge Fitzpatrllck's Disqualification Notice, Objectors Takako B. Guthrie

and Joseph A. Gutbde (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 filed an Answer to Petitioners' Statement of

Disqualification on June 16, 2021 (herein, the "Disqualification Answer").

THE ALLEGED FACTS CONSTITUTING DISQUALIFICATION

1 Section 6107 requires: "Within ten (10) 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 rnateriador relevant to the question of his or her disqualification."

Page 3 of 29 (1) Disqualifying Financial Interest (7 GCA §§6105(b)(4) and (d)(4))

Judge Fitzpatrick's Disqualification Notice stated she is a retired Government of Guam

employee currently receiving a pension, to which her husband is her beneficiary, fact that she

considered, without elaboration, does not disqualify her. Objectors point to parts of 7 GCA §§

6105(b)(4) and (d)(4) as authority for this alleged disqualification:

(b) A Judge shall also disqualify himself or herself in the following circumstances, but i£ following complete disclosure to all parties in the proceeding of the reasons for his or her disqualification, all parties agree to having the Judge continue to Sit in the proceedings, he or she need not disqualify himself or herself:

(4) Where he or she knows that he or she, individually has a financial interest in the subject matter in controversy ..., or in any other interest that could be substantially affected by the outcome of the proceeding."

(d) For the purpose of this section the following words or phrases shall have the meanings indicated:

(4) Financial interest means ownership of a legal or equitable interest, however smalL...

Objection Statement, pp. 4-5, italics added.

Objectors argue that Judge Fitzpatrick should be disqualified by two of the three distinct

disqualifying factors specified inc 6105(b)(4): first, a "financial interest", and second, "any other

interest that could be substantially affected by the outcome of the proceeding". (The third is

being a party to the subject matter in controversy or a party to the proceeding.)

First, "Judge Fitzpatrick is a member of the Defined Benefit Plan. As such, Judge Fitzpatrick has a financial interest in receiving her contracted-for benqits from the Retirement Fund. Even though Judge Fitzpatrick's financial interest in the Referent

2 The subject matter in controversy here is whether Takako B. Guthrie (herein, "Spouse Guthrie") is entitled to certain "spousal benefits" from the Government of Guam Retirement Fund administered by Respondent/Defendants .

Page 4 of 29 Fund is small relative to the size of the Fund, in respect to a disqualifying financial interest, size doesn't matter. Consequently, Judge Fitzpatrick has a 'financial interest' in the money in the possession of the Retirement Fund." (id., p. 4-5, italics added)

Second, "Judge Fitzpatrick has a /inaneial interest in the Retirement Fund which could be 'substantially ajecteal ' by the outcome of thiscase (id.,p 5). Why? Because: (1) If the Guthries are successful in gaining eligibility for surviving spouse benefits for themselves and class members, the liabilities of the Fund may be expected to increase, and (2) the outstanding Unfunded Actuarial Accrued Liability (hereinafter, 'UnfUnded Liability') already 'substantially affects' Judge Fitzpatrick's financial interest in receiving her contracted-for benefits from the Retirement Fund. Ipso facto, any increase in the Unfunded Liability will 'substantially affect' Judge Fitzpatrick's financial interest in the Retirement Fund." Objectors argue that 'substantially affected' refers not only to increases in the value of a judge's financial interest, but to threats to the solvency of the Fund, and, consequently, the threat posed by additional unfunded liabilities to Judge Fitzpatlick's financial interest in receiving her contracted-for benefits." (id., p. 5, italics added)

Judge Fitzpatrick's response did not deny the presence of a financial interest in the

outcome of the case. Rather, she claimed that, in this particular instance, it was not a

disqualifying event that would prevent her from hearing the underlying matter under the so-

called Rule of Necessity. She explained:

All the Judges of the Superior Court have disqualified themselves therefore the rule of necessity may be applied. Under the rule of necessity, it is the duty of the disqualified judge to hear and decide a controversy, however disagreeable it may be. Schwab v. Ariyoshi, 555 P2d 1329, 1332 (Haw 1978). The rule of disqualification must yield to the demands of necessity and a judge may act in a proceeding where he is disqualified by interest, relationship, or the like so that his refusal to act would destroy the only tribunal in which relief could be had and thus prevent a determination of the proceedingId."

Further, "[t]he United States Supreme Court has held, 'although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.' US. v. Will, 449 U.S. 200, 213 (l980)."

Finally, "The rule of necessity was invoked in Ada v. Gutierrez 2000 Guam 22 1[14, 'because every Judge on the Supreme and Superior Courts of Guam was appointed by

Page 5 of 29 either one of the parties in this case, every judge who could hear this case could be accused of appearing partial. If every judge could appear partial it becomes less important for the [ challenged judge] to disqualify himself"' (Disqualification Statement, p 3-4.)

(2) Alleged Disqualifying Personal Bias or Prejudice Concerning a Party (§6105(b))

Objectors point to 7 GCA §6l05(b)(l) as a second ground for disqualification, based on

an alleged personal bias or prejudice of Judge Fitzpatn'ck concerning a party, Joseph A. Guthrie

(herein, singularly, "Guthrie").

§ 6105 provides in pertinent part: "(`b) A Judge shall also disqualify himself or herself in the following circumstances:

"(1) Where he or she has a personal bias or prejudice concerning a party...."

Objectors refer to Judge Fitzpatrick's Disclosure Statement that notes her working

association with Guthrie over the course of 21 years, which she recalls as a "potentially

disqualifying" fact. Objectors however fail to describe "the fact or facts constituting the ground

of disquaLliiication", merely hypothesizing:

"On the one hand, such worldng relationship would engender a favorable impression in the judges' mind of her erstwhile attorney co-workers credibility, integrity of work product, and industriousness, to a disadvantage of other parties subsequently appearing before the judge in the same action. On the other hand, the course of such a work relationship could reveal the judge's prejudices toward her former co-worker. Unfortunately, the latter is what happened here. (Objection Statement pp. 5-6, italic emphasis added.)"

Objector's Objection Statement explicitly alludes to certain potentially disqualifying

facts of personal bias or even appearance of prejudice:

"Accompanying this Statement Objecting to the Competency of Judge Pro Tem Maria

Page 6 of 29 Fitzpatrick To Hear This Case, is an Exhibit 1. Exhibit 1 is entitled Amended Declaration of Joseph A. Guthrie in Support of Motion to Disqualify Maria Fitzpatrick. Review of Exhibit 1 discloses that, during Guthrie's employment at the OAG, Judge Fitzpatrick subjected Guthrie to public humiliation, Exhibit I-Page 1-2; publicly expressed hostility to Guthrie, Exhibit 1, page 2, encroached on Guthrie's assigned work, Exhibit 1, page 2- 3, undermined Guthrie's work, Exhibit 1, page 3, wrote and disseminated a written epigram disparaging Guthrie to fellow office mates, Exhibit 1, page 1, excluded Objector _#om social occasions and alienated the affections Objector's friends,Exhibit l, page 3. and disrespected Guthrie when she lied to him to circumvent the AGO leave policy, Exhibit l, pages 5-6. Even alter Guthrie went into private practice after leaving the Office of Attorney General, Judge Fitzpatrick_undermined Guthn'e at the law firm where he was employed. Exhibit 1, page 4." (Italic emphasis added.)

However accurate these references are to potentially disqualifying facts, there is no such

Exhibit 1, or other substantiating facts, in the record of this case. Although the Objection

Statement references an Exhibit 1, the filed objection presented to the court and lodged with the

Superior Court Clerk's office did not include such exhibits. The Objection Statement, without

the facts promised in Exhibit 1, leaves only bare conclusions and speculation, not the "fact or

facts constituting the ground of disqualification" required of 7 GCA § 6107.

Objectors allude also to a potentially disqualifying fact situation that they assert to

evidence personal bias or prejudice. But they again hypothesize "[i]t is Guthrie's position that

given [Judge Fitzpatrick's] track record ofattacks' on Guthrie, Judge Fitzpatrick's willingness to

sit on this case might be attributable to her seeking revenge for Guthrie's submitting the

Amended Declaration in the other proceeding. On the other hand, Judge Fitzpatrick's willingness

to sit on thiscase might be attributable to something else entirely as set forth below." (Objection

Statement, p. 7.) There is no such factually substantiated track record of attacks or revenge in

3 The Superior Court Clerk of Court confirmed with PlaintiHls/Petitioners' Attorney that Exhibit 1 was not

Page 7 of 29 the record of this recusal matter. It is all hypothesis.

Objectors secondly assert, as a fact indicating bias or prejudice, that Judge Fitzpatrick has

a "close friend of 35 years", Judy Mason, whose husband had also worked in the AGO before

retiring, and has recently died, on March 24, 2021. (Objection Statement, p. 8) Objectors

surmise,

"John Patrick Mason had retired under 4 GCA 8130(a)(2), meaning that under the current policy and practice of the Board of Trustees of the Government of Guam Retirement Fund, his wife, Judy Mason, is not be eligible for surviving spouse benefits. This is the very policy that the Guthries are challenging in this lawsuit. Therefore, Judge Fitzpatrick's willingness to sit on this case might be attributable to her intention to rule on this case in such a way that her friend of 35 years becomes eligible for surviving spouse benefits.

"Judge Fitzpatrick has indicated to Guthrie that she has not 'socialized' with the 'Masons' since 2004. Exhibit 1, page 6. To Guthrie, Judge Fitzpatrick's use of the word 'Masons' was an obvious ploy to hide the fact that Judge Fitzpatnlck has socializedwith Judy Mason since 2004, albeit not socializing with the Masons as a couple since 2004. This statement left open the possibility that Judge Fitzpatrick had continued to be close friends with Judy Mason from 2004 up to the current day," (Id., italic emphasis added.)

O f note, Objectors advise, "[t]o explore this possibility, [of bias or prejudice based on the

alleged close friendship with Judy Mason] Judge Fitzpatrick's Answer should not be legally

sufficient until it includes responses,made under oath.... " 4 (Id.,bold italic emphasis in original,

submitted with the Objection when filed and that the Objection was tiled as presented to the Clerk's office. 4 The Objection Statement several times reiterates the requirement that Judge Fitzpatrick verify statements in this proceeding: "If JudgeFitzpatrick tiles the Answer required by 7 GCA 6107, her Answer should be deemed legally insufficient by the reviewing Judge if her Answer does not address with specificity each statement in Exhibit 1. Van do (sic), at 1121-24" (Objection Statement p. 7, In 7); "If Judge Fitzpatrick tiles a General Denial as herAnswer, her Answer should be deemed legally insufficient by the reviewing judge. 7 GCA 6107 provides, in relevant part: Every such statement and every answer shall be verified in the manner prescribed for the verification of pleadings. Judge Fitzpatrick should not be allowed to file an unverified Answer. An unverified Answer should be treated as legally insufficient by the reviewing judge." Id.

Page 8 of 29 simple italics added.)

Objectors conclude their discussion of disqualification on the basis of section 6l05(b)(1)

bias with more conjecture, rather than facts: "Insofar as Judge Fitzpatnlck's willingness to sit on

this case might be attributable either to a desire to exact revenge on Guthrie, or an intention to

help her friend, Judge Fitzpatrick's judgment, if she sits on this case, could be affected by bias."

(Id., p. 9; italic emphasis added)

Judge Fitzpatrick answered the Objectors' allegations of bias and prejudice against

Joseph A. Guthrie with the following unequivocal statements:

"[T]his list of wrongs alleged is not substantiated by any document or statement, without specific proof of these interactions the [alleged] bias is purely speculative to the point of being fanciful or imagined.

"I deny that I have any grievance with Joseph A. Guthrie or Takako B. Guthrie.

"I do not have any reason to exact revenge.

"Disqualification is not required if an allegation that a judge might not be impartial is only speculative, conclusory, spurious or vague. Carbana v. Cruz 595 F. Supp 585, 587 (D.P.R.l984) A,7d, 767 F.2d 905(lst Cir. l985)." (Disqualifying Answer, p. 4); )

Judge Fitzpatrick's answer to Objectors' claim of bias in favor of Judy Mason is also a

categorical denial:

I deny that Judy Mason is my close friend of 35 years. ShaVe not had a relationship with Judy Mason since approximately 2004. I have not visited Judy Mason in her home from approximately 2004 to present. I have not met Judy Mason in coffee shops or restaurants 'from approximately 2004 to present. I have not spoken to Judy Mason by phone at any time that I recall alter 2004 to present. I have not communicated with Judy Mason by any other means or in other places at any time airer 2004 other than to say hello if I ran into her at a store. I have no personal knowledge regarding whether she is receiving a

Page 9 of 29 survivors benefit from the Government of Guam Retirement fund as a result of the death of her husband Patrick Mason. (Id. at 5)

(3) Disqualifying Appearance of Impartiality (§6l05(a))

Objectors cite 7 GCA § 6l05(a): "[a]ny Judge shall disqualify himself or herself in any

proceeding in which his or her impartiality might reasonably be questioned." (Objection

Statement, p. 9; italics added). Objectors take issue with Judge Fitzpatrick's depiction, in her

Disqualification Notice, of a particular legal action that became adversarial and involved Guthrie

and then-attomey Fitzpatrick, in particular this characterization. She wrote,

"During the period Joseph A. Guthrie was Chief Deputy he filed a lawsuit to stop about 6 attorneys from getting increments. I was one of the attorneys. Upon information and belief the case was eventually dismissed. We received our increments and attorney fees." (Disqualification Answer, p. 5-6)

Objectors offered clarification: "The case [described by Judge Fitzpatrick] was Joseph A.

Guthrie, in his ojyieial capacity as Certifying Ojicer of the Department of Law, Plaintiff v.

Douglas B. Moylan, in his official Capacity as head of the Department fLaw, Defendant, and

Robert Weinberg, Alan Haeuser, Maria Fitzpatrick and Deborah Rivera, Defendant-lntervenors,

Civil Case No. CV0929-05. Judgment was entered in this case on February 10, 2009."

(Objection Statement, p 10) Objectors also clarified the ultimate positions of the parties in that

case, quoting the judgment therein: "Judgment is hereby entered in favor of the Defendant and

Defendant Interveners on the basis of: 1) the April 28, 2006 Decision and Order granting

judgment on the pleadings in favor of the Defendant and Intervenor Weinberg; 2) the July ll,

2006 Decision and Order granting intervention to Haeuser, Fitzpatrick and Rivera, 3) the

Page 10 of 29 November 8, 2006 withdrawal of the Plaintiffs motion for clarification of judgment; and the

December 12, 2006 Stipulation and Order to recover attorney's fees." Id. (italics added). This

clarification was only useful to proved dates that show the case was well under way no later than

April 2006, and was resolved in February 2009. Judge Fitzpatrick was appointed Judge Pro

Tempore for this matter on May 20, 2021, about twelve years aler that event.

Objectors re-characterized the subject matter of that case: "[t]his case involved

implementation of a law relating to attorney pay. Guthrie was Certifying Officer of the Office of

Attorney General at the time," adding, "Guthrie sought, through this lawsuit, guidance from

court how the attorney pay law should implemented." Id. at 10-11. But where was the animus,

or preference, underlying an appearance of impartiality in this characterization?

Objectors also disagreed with some of the potentially disqualifying facts as described by

Judge Fitzpatnlck:

"Contrary to Judge Fitzpatrick's statement in Form 3, the case did not involve 'increments'.... Instead, the case involved how attorneys should be 'slotted' on an attorney pay scale enacted by an attorney pay law., as well, 'contrary to Judge Fitzpatrick's statement in Form 3, Judge Fitzpatrick was not one of only six attorneys affected. The attorney pay law affected all Government attorneys...." Id. at 10.

***

"Most significant, Judge Fitzpatrick omitted to indicate on Form 3 that she was an intervenor in the case. The above quoted statement in Form 3 would lead the reader to believe that she was a defendant in the case, and that case was brought by Guthrie to prevent her from receiving increment(s)." Id. at 11

Objectors concluded, saying:

"[i]t would strain a reasonable observer's credulity that Judge Fitzpatrick could serve as an impartial judge of a case involving a party when she had opposed that very same party as a self- appointed spokesman for fellow employees.

Page 11 of29 "Under 7 GCA 6105(a), what matters is not 'actual bias,' but 'the appearance of bias'. Dizon v. Super. Co. (People), 1998 Guam 3, 10 n.3. Thus, maintaining the appearance of impartiality requires that this case be assigned to another judge." Id. Judge Fitzpatrick responded with a more expansive statement of the Dizon

interpretation of the disqualifying bias standard of recusal in § 6105(a) than that provided by

Objectors:

"'[T]he standard of recusal is the appearance of impropriety and that no actual showing of bias is necessary for recusal to lie' Dizon v. Supen'or Court 1998 Guam 3 1] 8. The appearance of bias is judged/rom the standard of a 'reasonable person "who knows all the facts, and understands the 'contexts of juriSdictions, parties, and controversies involved.' Id. (quoting Ada v. Gutierrez, 2000 Guam 22 111] 12-13). People v. Camaddu, 2015 Guam 2 1[ 74 (internal citations omitted)." (Disqualification Answer, p. 5, italic emphasis added)

In her Disqualification Answer, Judge Fitzpatrick revised her description of the subject

case, taking note of its vintage, faded effect, and passing drama: "The case of Joseph A. Guthrie,

in his o17icial Capacity v. Douglas B. Moylan in his official Capacity Superior Court Civil Case L

no. CV0920-05 happened many years ago and does not af f ect me personally in any way

emotionally or financially. The case was resolved favorably by dismissal and I was awarded

attorney fees. I have no grudge against Plaintiff for this or anything else." (Disqualification

Answer, p. 5). She defended her actions, alluded to by Objectors, stating "I deny Petitioner's

vague allegations of ill-will toward him." Id. at 6.

A N A LY S I S

(1)(d) the Alleged Disqualifying Financial Interest

Objectors argue Judge Fitzpatrick is disqualified by 7 GCA § 6105(b)(4) due to a

"financial interest" in the "subject matter in controversy", namely "a financial interest in

Page 12 of 29 receiving her contracted-for benefits from the Retirement Fund" (Objection Statement, p. 4,

italics added). Objectors claim "7 GCA 6l05(d)(4) provides, in relevant part: 'Financial interest

means ownership of a legal or equitable interest, 'however small'." (Id., bold italics added.)

Objectors specifically claim "Judge Fitzpatrick has a 'financial interest' in the money in the

possession of the Retirement Fund, within the meaning of 7 GCA §6l05(b)(4) and (d)(4)."

(Italics added).

But, in the full relevant law of section 6105(d)(4)(A), Judge Fitzpatrick has but a

financial benefit in the retirement disbursements made to her, and no financial 'interest' in the

'money in possession of the Retirement Fund'. Section 6l05(d)(4)(A), explicitly excludes f i r m

the general definition of financial interest, "ownership in a mud or common investment fid

that holds securities unless the Judge participates in management of the fund." 7 GCA §

6105(d)(4)(A). The Guam Government Retirement Fund ("GGRF") is reasonably described,

funded, managed, and distributed as a mutual or common investment fund: it is not a "financial

interest" within the full meaning of § 6105(d)(4).

A member's interest in the assets of the GGRF is indirect, in much the same way that a

shareholder has no claim to any particular asset of a corporation (nor personal liability for any

corporate debt), and similar to a trust beneficiary's legal claim to any particular common asset

held in trust. The GGRF is constrained by statute:

5 "A mutual fund is a company that pools money from many investors and invests the money in securities such as stocks, bonds, and short-term debt. The combined holdings of the mutual fund are known as its portfolio. Investors buy shares in mutual funds. Each share represents an investor's part ownership in the fund and the income it generates." https://www.investor.2ov/introduction- investing/irxvestin2-basics/investment-oroducts/nuutual-fUnds-and-exchange-traded~ l

Page 13 of29 4 GCA § 8138. Board of Trustees.

(a) The general administration and the responsibility for the proper operation of the Fund, and for making ective the provisions of this Artiele, shall be vested in a Board of Trustees.

4 GCA § 8143. Investment of Funds

(a) The reserves of the [Retirement] Fund in excess of requirements for current operations shall be invested and rein (sic) vested by or under authority of the Board of Trustees.

(c) All proceeds and income from investments, of whatever nature, shall be credited to the accounts of the Fund.' Transactions in marketable securities shall be carried out at prevailing market prices.

(d) The Board may commingle securities and moneys subject to the crediting of receipts and earnings and charging of payments to the appropriate accounts established by this Chapter.

4 GCA § 8139.1. Fiduciary Duties.

(a) The members of the Board of Trustees stand in a fiduciary relationship to the beneficiaries of the Retirement Fund in regard to the management of the Fund.

(b) The members of the Board of Trustees shall discharge their duties with respect to management of the Retirement Fund:

6 The Government of Guam Retirement Fund Financial Statements, September 30, 2020, and 2019, describe its assets for the stated most recent period. The essential feature of the retirement fund is the use of investments to cover liabilities to beneficiaries of two plans: one a direct benefit plan (DB Plan) and the other a direct contribution plan (DC Plan). For the 2020 period, the statements show the DB Plan had total "investments" of $l,978,798,494, made up of Common Stocks, U.S. Government Securities, Corporate Bonds and Notes, Money Market Funds, and Mutual Funds, as well as $2,898,149 in cash and equivalents. The DC Plan held $394,945,071 in investments and $4,782,863 in cash and equivalents. The total investments held by the Guam Retirement Fund were in excess of 2.3 million_dollars. The total cash and equivalents amount to less than 7.7 Million dollars. Typically, funds keep cash and equivalents on hand to provide liquidity to pay operational expenses and facilitate returns on investments and meet other non-investment contingencies, money not kept for paying retirement benefits. Members of the GGRF have a financial interest in the payment of retirement benefits derived from fund inveshnents, both net capital from trades and returns of dividends and interest on securities held.

Page 14 of 29 (1) solely in the interest of the members and beneficiaries of the Fund, and for the exclusive purpose of providing benefits to members' and beneficiaries and defraying reasonable expenses of administering the Fund....

(All emphasis in these quoted statutes added).

Of pMcular relevance to Objector's claim of an interest in the money held by GGRF is,

4 GCA § 8165. Interest of Members in Fund: "Each member shall, by virtue of the payment of contributions to the system, receive a vested interest in such contributions and in consideration of sueh vested interest shall be conclusively deemed to undertake and agree to pay the same and to have the amounts deducted from his compensation as herein provided."

That "vested interest" describes a security interest held by GGRF in member contributions, to

allow the Fund to operate in reliance of those continued contributions for the benefit of the Fund.

It does not describe a membership claim to any part of the Fund itself

In addition to the relevant statutes, the GGRF is primarily made up of two stand-alone

plans, a "Deferred Compensation Plan" and a "Defined Contribution Plan"7. Both plans contain

a description of various "accounts" of the respective plans. Each of the plans contains a

statement of how investment earnings and losses are to be allocated to the various accounts.

Both of those plans contain identical formulae used to allocate those earnings and losses:

"The balance of your Accounts will be aayusted at on an ongoing basis for earnings and losses of the trust fund attributable to investment of the account balances.Ut h e Plan's assets are invested in a general fund, such earnings and losses will be allocated to the Accounts of all participants on a pro rata basis based on their Account balances. However, to the extent that the Plan allows participants to direct the investment of their Accounts, earnings and losses will be allocated to each participant's Accounts based on the earnings and losses attributable to such Accounts."

7 As the workings of the GGRFand its plans is not of particular pertinence to thisrecusal matter, see summary descriptions of the GGRF's plans athttps://www.ggrf.com/public-review-documents.

Page 15 of 29 The Committee on Codes of Conduct of the Judicial Conference of the United States

provides a set of ethical principles and guidelines adopted by the Judicial Conference, as well as

a Code of Conduct. Its guidance runs in line with that of 7 GCA Chapter 6 insofar as judicial

disqualification is concerned. The Judicial Conference has authorized its Committee on Codes

of Conduct to publish formal advisory opinions on ethical issues.8 Relevant here, is Advisory

Opinion No. 106: Mutual or Common Investment Funds (March 2011):9

"This opinion addresses recusal considerations related to ownership of mutual or common investment funds ("mutual fLlnds"). Canon AC is intended to set a standard for economic disqualification that assures impartiality and the appearance of impartiality, while also allowing judges to make non-disqualifying investments. We approach our analysis with the following princzplejirmly in mind: that the Code should be interpreted to the extent reasonably possible to enable judges to invest injimds without transgressing the Code or engaging in a conflict of interest.

"Canon 3C(l)(c) requires a judge to disqualify himself or herself when the judge knows that he or she "has a financial interest in the subject matter in controversy..." or when the judge has "any other interest that could be affected substantially by the outcome of the proceeding." However, "ownership in a mutual or common investment fund that holds securities is not a 'financial interest' in such securities unless the judge participates in the management of the fund." Canon 3C(3)(c)(i).

"These Code provisions, read together; provide that investments in a mutual fund will normally avoid triggenhg recusal concerns with respect to the securities that the fund holds, with some exceptions discussed below. Consistent with the "safe harbor" concept, the Committee has advised that investment in a mutual fund does not convey an ownership interest in the companies whose stock the fund holds.

"Although the Code does not define "mutual or common investment fund," determining whether a fund qualm*ies for the safe harbor contemplated under Canon 3C(3)(c)(i) involves several related considerations, including: (1) the number ofparticqnants in the fund; (2) the size and diversity offend investments; (3) the ability of participants to direct their investments, (4) the ease of access to and Frequency of information provided about the fund portfolio; (5) the pace of turnover in fund investments; and (6) any ownership

8 See,https://www.uscourts.gov/rules-policies/judiciary-policies/ethics-policies 9 See, https://www.uscourts.gov/rules-policies/iudiciary-policies/ethics-polieies/ published-advisorv-opinions

Page 16 of 29 interest investors have in the individual assets of the fund.

"... For example, we have advised that a judge's former law firm's 401(k) retirement plan could not be considered a mutual fund under the Code because it was managed by the law firm, had a relatively small number of participants, and provided the p cipants with detailed access to investment information regarding the plan. In contrast, the Committee concluded that a law firm's retirement fund qualified for the mutual fund exception because there were a large number of participants, the participants could not directly control the investments, the participants could not easily access information about the fund's portfolio, and the fund's assets turned over frequently." (All italic and bold emphasis added.)

Applying the six "related considerations" mentioned in Advisory Opinion No. 106, Judge

Brown finds:

(1) In June 27, 2019, there were 23,663 members of the Guam Government Retirement Fund. 10

(2) The GGRF has a highly valuable, widely diversified portfolio of investments (common stocks, government securities, mutual funds, etc., of over $2.3 Billion in the latest annual report (see n. 6, supra)).

(3) The Fund has three funds from which the employee may choose broad options subject to plan conditions: a defined benefit plan, a defined contribution plan, and a deferred compensation plan which members may avail as a supplement to either of the other two plans. In no such plan does a member have the ability to direct payments, except between plans (not particular investments). 4 GCA § 8143 requires that funds be invested by or under authority ofthe Board of Trustees, not members.

(4) The Trustees Of the fund are tasked with the administration and investment of the fund (§§ 8143 and 8165), not the members.

(5) The Fund publishes an annual report of its operations, but not a detailed statement of individual fund investments, its website (https://www.2lzrf.com/l does not regularly can'y any information about the fund portfolio. The fund does not seem to publish any churn rate indicating turnover.

(6) The fund members are not given ownership of any particular asset of the plans or Fund.

10 https://www.2uampdn.com/storv/news/2019/06/26/ onlv-96-govzuam-retirement-fund-rnembers-voted- trustees/1556015001/

Page 17 of 29 It may wellbe that a member of the GGRF is entitled to certain monetarybenqits, which

Judge Fitzpatrick has acknowledged receiving, but a member's receipt of money as a financial

benefit of membership does not constitute a "financial interest" in the context of § 650l(d)(4)(A)

unless the member "participates in management of the filnd". Judge Brown finds no allegation

or evidence in the record that would suggest that Judge Fitzpatrick in any way "participates in

management of the fund". Judge Fitzpatrick does not possess a disqualifying financial interest

as alleged by Objectors.

As a separate objection, Objectors allege "Judge Fitzpatrick has a financial interest in the

Retirement Fund which could be 'substantially affected' by the outcome of this case." This is

predicated on § 6501(b)(4): "A Judge shall also disqualify [where] she has any other

interest that could be substantially affected by the outcome of the proceeding." Objectors,

however, have not alleged or identified any interest other than a member's financial benefits.

Thus, Judge Brown finds that Objectors have not made the case for any disqualifying ground

described in § 6501(b)(4) as alleged .

(1)(b) Judge Fitzpatrick's Claimed Defense of Necessity

Judge Fitzpatrick defended her qualification to sit and hear the financial interest

controversy, despite her failure to dispute the allegations made that she does have a disqualifying

financial interest," because "[a]ll the Judges of the Superior Court have disqualified themselves

11 Judge Brown has found that the alleged financial interest dsqualitication does not pass the definitional test as a "financial interest" within the contemplation of §§ 6l05(b)(4) and (d)(4)(A). Nevertheless, because the matter of judges being disqualified for necessity may repeat, Judge Brown responds toludge Fitzpatrick's claim with analysis.

Page 18 of 29 therefore the rule of necessity may be applied. Under the rule of necessity, it is the duty of the

disqualified judge to hear and decide a controversy, however disagreeable it may be." She noted

"[t]he mle of necessity was invoked" in Ada v. Gutierrez 2000 Guam 22". (Disqualification

Answer pp. 2-3).

It is the that the Ada Court did discuss the applicability of the Necessity Rule, but the

discussion was not substantive. Ada did not address if it was appropriate in the circumstances of

that case, it arose as a question as to what stage in a litigation it should be used if applicable.

The Court, in Ada , said, "[i]n vwlz, the Court did not hold that every Article III judge had to

disqualify himself or herself before it could use this common-Iaw principle. W e s ee no

legitimate reason to waste time and other resources when we can apply the rule of necessity

immediately." Id., 'H 14. Ultimately, the Court rejected the request to disqualify the judge in

question, negating any need to discuss necessity. Ada may have noted a rule of necessity, but it

did not invoke it, in the sense of calling upon it, as Judge Fitzpatrick suggested. (Disqualification

Answer, p. 3.)

In Will, (United States v. Will, 449 US 200 (1980)) which was an appeal firm a Federal

District Court, the U.S. Supreme Court explained the cause of necessity in that case:

"In federal courts generally, when an individual judge is disqualified from a particular case by reason of §455,12 the disqualified judge simply steps aside and allows the normal administrative processes of the court to assign the case to another judge not disqualified. 111 the cases now before us, however, all Article III judges have an interest in the outcome, assignment of a substitute Distrllct Judge was not possible. And in this Court, when one or more Justices are reused but a statutory quorum of six Justices eligible to

12 28 U. S. C. §455, which is considered to be mirrored in 7 GCA § 6105. "Federal cases are useful in the following examination because Guanl's rule on judicial disqualification is based upon the federal law. See 28U.S.C_ §455(a) (1986)." Dizon, supra.,font 2.

Page 19 of 29 act remains available, see 28 U. S. C. § 1, the Court may continue to hear the case. Even if all Justices are disqualified in a particular case under § 455, 28 U. S. C. §2109 authorizes the Chief Justice to remit a direct appeal to the Court of Appeals for final decision by judges not so disqualified. However, in the highly unusual setting of these cases, even with the authority to assign otherfederal judges to sit temporarily under 28 U. S. C. §§ 291-296 (1976 ed. and Supp. III), it is not possible to convene a division of the Court of Appeals with judges who are not subject to the disqualyicaiion provisions o f §455. It was precisely considerations of this kind that gave rise to the Rule of Necessity."

United States v. Will, 449 US 200, 212-213 (1980). Italic emphasis added.

The Federal Judicial Center" sponsors the publication, Judicial Disqualmcation, An

Analysis of Federal Law Third Edition 2020," which text is referred to herein as the "FJC

Disqualification Analysis". The FJC Disqualification Analysis provides an example of

application of the necessity factor at, pp. 16-17:

"Courts have used the rule of necessity to reject disqualification in a variety of situations. In In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation [170 F. Supp, 2d 1356 (J.P.M.L. 200l)], for example, four of seven members of the Judicial Panel on Multidistrict Litigation (JPML) assigned to hear the matter held stock interests in one or more of the parties. The JPML determined that the rule of necessity precluded disqualification under § 455(a) because there was no statutory provision for substituting panel members, and disqualification would result in fewer than the four judges required by statute to hear the case."

The conundrum of unavailability of judges has not appeared to be, as a practicable

matter, a big issue in Guam, and has not been one in this particular matter, as can be attested by

appointments of Judges Pro Tempore Fitzpatrick and Brown in this disqualification dispute.

Guam is not as constrained to find qualified Article III judges as the federal courts appear to be.

Title 7 GCA § 6108, following in sequence and context with the other statutes concerning

13 The Federal Judicial Center is the education and research agency of the United States federal courts ®@s:// .§c.gov/about). 14 See,https:// www.{jc.gov/content/348974/judicial-disqualification-analysis-federal-Iaw-third-edition.

Page 20 of 29 substance and procedures for judicial disqualification in Guam courts, contemplates the

appointment of Judges and Justices Pro Tempore "when there is no Judge [or Justice] qualified

or available to hear a cause, action or hearing." This mitigates, if not entirely eliminates, the

necessity of the rule of necessity in most Guam. Judge Brown finds that Judge Fitzpatrick's

claim of necessity on the facts here is misplaced.

(2) Disqualifying Personal Bias or Prejudice Concerning a Party (§

6l05(b)(1)

As discussed above, this Objection is laid in two claims, the first one arising &om

events occurring during the 21-year period of time that Judge Fitzpatrick and Guthrie worked in

the AGO. The second claim is made that Judge Fitzpatrick is biased in favor of 35-year close

friendship with a woman, Judy Mason, whose husband, Patnlck Mason, was another lawyer in

the AGO, though now recently deceased.

Objectors suggest specific facts relative to the first claim by reference to an

"Exhibit 1" meant to be attached to the Statement Objecting to the Competency but wasn't.

Objectors cite to 7 GCA § 6105(b)(1), which requires a judge to disqualify if she has a personal

bias or prejudice concerning a party to the proceeding. § 6105(b)(1) is obligatory, but if a Judge

does not recuse, which is contemplated in Judge Fitzpatrick's Disqualification Notice, § 6107

allows a party to file a Statement of Objection, objecting to the hearing of the matter by the

Judge. The Statement of Objection must, however, set forth the fact or facts constituting the

ground of disqualification. Judge Brown has already described the circumstances indicating

Objector's attorney made the decision to withhold that Exhibit from this matter leaving the

Page 21 of 29 record devoid of facts or reasons substantiating Objector's claims (see n. 3 and associated text,

supra). Consequently, with no actual facts adduced, Judge Brown finds that Objectors have

failed to make the case for disqualification under this claim of prejudice.

Objectors secondly allege "Judy Mason, is not be eligible for surviving spouse benefits,

and that this is the very policy that Objectors are challenging in this lawsuit. Therefore, they

allege, Judge Fitzpatrick's willingness to sit on this case might be attributable to her intention to

rule on this case in such a way that her friend of 35 years becomes eligible for surviving spouse

benefits." (Italic emphasis added). Judge Fitzpatrick categorically denied any relationship with

Judy Mason of the type or duration alleged or suggested and Objectors have adduced no facts to

the contrary or otherwise in substantiation of their claim.

The failed disclosure of facts aside, Judy Mason is not a party to the proceeding, and §

6l05(b)(l) applies only where the Judge "has a personal bias or prejudice concerning a party".

Consequently, on the state of the record presented, Judge Brown finds that Objectors have failed

to make the case for section 6l05(b)(l) disqualification under the claim of bias.

Objectors characterize this statement as one in which,

(3) the Appearance of Impartiality

Objectors cite to grounds for disqualification in 7 GCA § 6105(a): "Any Judge shall

disqualify himself or herself in any proceeding in which his or her impartiality might reasonably

be questioned...." (Italic emphasis added). Factually, as to this objection, Objectors take issue

with Judge Fitzpatrick's following depiction of a particular adversarial case:

"During the period Joseph A. Guthrie was Chief Deputy he filed a lawsuit to stop about 6 attorneys from getting increments. I was one of the attorneys. Upon

Page 22 of 29 information and belief the case was eventually dismissed. We received our increments and attorney fees." Objection Statement, p 9.

Objectors found it necessary to provide a more formal case caption and date ofjudgement

in 2009. and the "relevant part" of the judgment:

"Judgment is hereby entered in favor of the Defendant and Defendant Interveners on the basis of: 1) the April 28, 2006 Decision and Order granting judgment on the pleadings in favor of the Defendant and Intervenor Weinberg; 2) the July 11, 2006 Decision and Order granting intervention to Haeuser, Fitzpatrick and Rivera; 3) the November 8, 2006 withdrawal of the Plaintiffs motion for clarification of judgment; and the December 12, 2006 Stipulation and Order to recover attorney's fees." Id., p 9-10

And, they corrected the record:

"Contrary to Judge Fitzpatrick's statement in Form 3, the case did not involve "increments", if that word is understood to refer to the pay raises received by Government of Guam employees every two years for satisfactory performance. Instead, the case involved how attorneys should be "slotted" on an attorney pay scale enacted by an attorney pay law.

"Also contrary to Judge Fitzpatrick's statement in Form 3, Judge Fitzpatrick was not one of only six attorneys affected. The attorney pay law affected all Government attorneys, including all attorneys at the Office of Attorney General and Public Defender.

"Most significant, Judge Fitzpatrick omitted to indicate on Form 3 that she was an intervenor in the case. The above quoted statement in Form 3 would lead the reader to believe that she was a defendant in the case, and that case was brought by Guthrie to prevent her from receiving increment(s). Not so, Judge Fitzpatrick was an intervenor in a case involving interpretation of an attorney pay law affecting all Government attorneys.

"It would strain a reasonable observer's credulity that Judge Fitzpatrick could serve as an impartial judge of a case involving a party when she had opposed that very same party as a self-appointed spokesman for fellow employees." Id., pp 10- 11.

Page 23 of 29 What impartiality is evident in these facts that could possibly be reasonably questioned?

Harboring long held grudges arising in the context of litigated cases has generated a judicial

reaction which limits the effect of disqualification under § 6105(a). (FJC Disqualification

Analysis, pp. 33-34):

"This so-called 'extrajudicial source' doctrine is born of the common-sense view that ordinarily the circumstances suggesting or creating the appearance of partiality cannot reasonably be derived from information revealed in the normal course of litigation because it is natural for judges to form attitudes about litigants and issues before the court as the facts unfold, and no reasonable person would question the impMadity of judges who do. [Italics added.] As the Supreme Court explained later, in Liteky v. United States (510 U.S. 540 (l994)):

"The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby reusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench Md) necessary to completion of the judge's task."

"The general mule that bias or prejudice must be derived iron an extrajudicial source and that comments based on a judge's observations in pending proceedings will not ordinarily form the basis for disqualification applies equally to comments a judge makes in earlier proceedings. In Liteky v. United States, the Supreme Court made two relevant observations. First, it stated that in United States v. Grinnell Corp., it "clearly meant by 'extrajudicial source' a source outside the judicial proceeding at hand-which would include as extrajudicial sources earlier judicial proceedings conducted by the same judge." This observation, however, must be understood in the larger context of the opinion as a whole, in which the Court rejected rigid adherence to an extrajudicial source doctrine (which it characterized not as a "doctrine " but as a "factor").

"The Court's second, and ultimately more important, observation - regardless of whether prior proceedings are characterized as an "extrajudicial source"-was that for purposes of disqualyication analysis, a judge's comments in pending and past proceedings are on equal footing:

"[O]pinions formed by the judge on the basis of facts introduced or events

Page 24 of 29 oecurn'ng in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep- seatedfavoritism or antagonism that would make fairjudgment impossible."

Id. at 39-40 (internal citations omitted, italic emphasis added).

Liteky v. United States, 510 US 540, 555-556 (1994) summarizes this "extrajudicial" factor:

"[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seatedfavoritism or antagonism that would makefairjudgment impossible. Thus, judicial remarks' during the course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source, and they will do so i f they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. Not establishing bias or partiality, however, are expressions ofjudicial remarks during the course of a trial , dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women,even after having been confirmed as federal judges, sometimes display." (Italic emphasis in words "may", "will", and "not" are in original, other bold, italicized, and underlined emphasis added.)

Judge Brown finds that Objectors' animus driving this allegation of impartiality is not

from an "extrajudicial" source, given Objectors' focus on the prior proceeding as the genesis of

the alleged impartiality. It was, rather, from an adversarial judicial source that included the

adversarial participation of Pro Tempore Judge Fitzpatrick and Guthrie.

Objectors claim JudgeFitzpatrick is disquadiiied for "impartiality [which] mightbe

reasonably questioned" simply because of her characterization ofjudicial matters involving the

parties to this recusal request:

"During the period Joseph A. Guthrie was Chief Deputy he filed a lawsuit to stop about 6 attorneys from getting increments. Iwis one of the attorneys. Upon information and belief the case was eventually dismissed. We received our increments and attorney fees."

Objectors have made more of this than meets the reasonable eye of a reasonable person.

Page 25 of 29 "A statement is legally insufficient [for disqualification] ii on its face, it fails to allege 'any facts that would serve as grounds for disqualification under Guam law ....' Johnny, 2006 Guam 10 'll 19." so* "[A] statement of objection is legally insufficient if it includes only conclusory or irrelevant statements, such as:

"[C]onclusions, references to copious transcripts without citation to specific excerpts, allegations of facts not pertinent or appropriate to the issues to be determined in the hearing, material not legally indicative of bias or prejudice, such as judicial opinions expressed in the discharge of litigation and legal rulings; judicial reactions based on actual observance in participation in legal proceedings, and references to circumstances so inconsequential as to be no indication whatsoever Ofhostility and nonprobative of any bias or prqudice."

Van Dox v. Super. Co. (Aleorn)2008 Guam 7 111] 27 and 29 (italic emphasis added).

The "might reasonably be questioned" standard in section 6l05(a) is often described as

an "objective" one that the requires objectivity, not subjectivity. It requires an appearance of

bias or prejudice produced in the style of paint by numbers, not by spaghetti splatter on a wall.

US v. DeTemple, 162 F. ad 279, (4th Cir. 1998) involved a disqualiicadon claim based

on the Mctionally equivalent Guam statutes, 7 GCA §§ 6105(a) and (b)(1), and made the

following observations pertinent to Objectors' assertion as to what "would strain a reasonable

observer's credulity":

"In sum, § 455(a) forbids more than actual bias. Obviously, it is possible for facts to indicate that a judge might be biased such that recusal is required under §455(a) even though none of those facts indicates actual bias necessitating recusal under 455(b). But whether that has happened here is another matter.

"Congress revised the disqualification statute in 1974 and instituted an objective standard in § 455(a) to replace the old subjective standard. This objective standard asks whether . the judge's impartiality might be questioned by a reasonable, well-informed observer who assesses 'all the facts and eircumstanees. I ***

Page 26 of 29 "[B]ut it does not require a judge to recuse himself because of 'unsupported, irrational, or highly tenuous speculations To disqualify oneself in such circumstances would be to set 'the price of maintaining the purity of appearance' too high - it would allow litigants 'to exercise a negative veto over the assignment of judges'. Congress never intended the disqualification statute to yield this result.

"Application of the objective standard thus requires a nuanced approach. On the one hand, we must keep in mind that the hypothetical reasonable observer is not the judge himself or a judicial colleague but a person outside the judicial system. On the other hand, a reasonable outside observer is not a person unduly suspicious or eoncemed about a trivial risk that judge may be biased. There is always some risk of bias, to constitute grounds for disqualyication, the probability that a judge will decide a case on a basis other than the merits must be more than 'trivial. '

"We believe that a reasonable outside observer, aware of all the facts and circumstances of this case, would not question Judge Stamp's impartiality. To be sure, DeTemple has amassed quite a list of allegedly disqualfing conflicts. But an observer, cognizant fall relevant information, would know that these multiple contentions not only lack a factual basis demonstrating impropriety, but also fail to create even the appearance of bias. " Id. at 286-287 (internal quotations and citations omitted, italics added).

It is materially pertinent in this matter that Guthrie is not a person "outside the judicial system", yet it is his view that he articulates, e.g., " To Guthrie, Judge Fitzpatrick's use of the word 'Masons' was an obvious ploy to hide the fact that Judge Fitzpatrick has socialized with Judy Mason since 2004" (Objection Statement p 8). Note, also, Objectors' assertion, that "[i]t would strain a reasonable observer's credulity that Judge Fitzpatrick could serve as an impartial judge of a case involving a party when she had opposed that very same party as a self-appointed spokesman for fellow employees" (id., p ll), contradicts the holding inDeTemple, supra, that "a reasonable outside observer is not a person unduly suspicious or concerned about a trivial risk that a judge may be biased. There is always some risk of bias, to constitute grounds for disqualification, the probability that a judge will decide a case on a basis other than the merits must be more than 'triviaL"'

Guam case law is to similar effect:

"Ordinarily, a judge's antipathy for or bias against an attorney is not sufficient grounds for disqualification of the judge. For bias against an attorney to require disqualification, the bias must be 'of a continuing and personal nature and not simply bias against the attorney because of his conduct'."

Page 27 of 29 =l=»==1=

Similarly, disqualifying bias must normally stem from extrajudicial sources, but there may be an exception where 'such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party'. '[P]redispositions developed during the course of a trial will sometimes (albeit rarely) suffice'." Van Dox, supra, 35 (internal citations omitted).

On the sparse factual record in this matter, Judge Brown strains to find any appearance of

Judge Fitzpatrick's impartiality in the matter, let alone actual bias, prejudice or impartiality. The

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.

Judge Brown finds that Judge Fitzpatrick is competent to hear the captioned matter.

FAILURE TO VERIFY THE OBJECTION STATEMENT

In addition to the substantive deficiencies of the Objectors' Statement of Objection

discussed above, Judge Brown has found that Objector's Objection Statement is formally

deficient. It was not verified.

As Objectors' forcefully insisted, repeatedly (see, Objection Statement pp 7-8), 7 GCA

6107 provides, in relevant part, that "[e]very such statement and every answer shall be verified in

the manner prescribed for the verification of pleadings".

"The California Court of Appeals observed in People v. Ladd, 181 Cal. Rptr. 29 (Ct. App. 1982) that a party may tile a statement of objection, but '[i]f such a statement is not verified, it is formally defective and may be stricken out or disregarded Johnny, supra, 1[ 13. *** We believe that no reason exists to warrant departing from California case law. To the contrary, policy concerns weigh in favor of a rule permitting challenged judges to strike a formally defective statement of objection." Id, 1] 14.

Page 28 of 29 Judge Brown finds that Judge Fitzpatrick did provide a proper verification of her

Objection Answer. However, unmentioned in Judge Fitzpatrick's Objection Answer, Judge

Brown has not found Objectors' Statement of Objection to bear or duly incorporate any

statement or form of the verification required. The Statement of Objection is thereby found to be

formally deficient as well, and on that basis the disqualification challenge also fails.

(10n(11 Alslon

For the foregoing reasons, Petitioners/Plaintiffs have not stated grounds under 7 GCA §§

6l05(a), (b)(l), or (b)(4), warranting Judge Fitzpatrick's disqualification, and have, in addition,

failed the verification requirement of section 6107 requiring Petitioners/Plaintitfs' Statement

Objecting to the Competency of Judge Pro Tem Maria Fitzpatrick to Hear This Case,

Petitioners/Plaintiffs' Request for Recusal of Judge Fitzpatrick is hereby DENIED.

SO ORDERED: 111152021

BLE JUDG PRO TEMPOEE' JOHN T OS BROWN

Page 29 of 29