THE SUPERIOR COURT OF GUAM
PROBATE CA~~tt. rflotff~-83
12
IN THE MATTER OF THE ESTATE )
3 )
OF )
4 )
5 JOSE CASTRO SAN NICOLAS, ) DECISION AND ORDER ) (Statement of Objection)
6 Deceased. ) 7
8 INTRODUCTION
9 This matter comes before the HONORABLE VERNON P. PEREZ on the Heirs' of 10
Isabel S.N. Eclavea ("the Eclavea Heirs") Statement of Objection to the competency of the 11
12 Honorable Arthur R. Barcinas ("Judge Barcinas"). The Eclavea Heirs are represented by
13 Attorney Delia Lujan Wolff. The Court now issues the following Decision and Order denying 14 the Eclavea Heirs' Statement of Objection.
15
16 BACKGROUND
17 At a hearing on April 3, 2013, Judge Barcinas disclosed that Attorney Jessica Toft 18 ("Attorney Toft"), attorney for the present Administrator, was his former law clerk and did not 19
20 work on the underlying probate matter during her clerkship. Statement of Objection at 2. The
21 Eclavea Heirs then filed Statement of Objection on April 17,2013, seeking to disqualify Judge 22 Barcinas. Judge Barcinas filed Decision and Order ("Decision") and Answer to Statement of 23 Objection ("Answer") on May 3, 2013.
24
25 DISCUSSION
26 The Eclavea Heirs argue Judge Barcinas should be disqualified due to Attorney Toft's 27
appearance in this case. This argument is not premised on bias, but on whether Judge 28
Barcinas's impartiality might be reasonably questioned under Title 7 GCA § 6105(a).
In the Mauer of the Estate ofJose Castro San Nicolas Decision and Order (Statement of Objection) Probate Case No, PROOI3-03 Page I of9
Title 7 GCA § 6107 governs the procedure for filing a statement of objection regarding a 2 judge's disqualification. The Supreme Court of Guam has described the procedure prescribed 3 by 7 GCA § 6107:
4 Pursuant to 7 GCA 6107, if a judge does not recuse himself, then a party may, 'at 5 the earliest practicable opportunity,' 'file ... a \vritten statement objecting to the ...
6 Judge.' The written statement must 'set[ ] forth the fact or facts constituting the ground of the disqualification of such ... Judge,' and must be served on the Judge.
7 Within 'ten (1 0) days after the service ... or ... filing of any statement, whichever is later in time,' a Judge may file a 'written answer,' which must be 'verified in 8 the manner prescribed for the verification of pleadings.' If the Judge opposes his 9 own disqualification, then 'the question of the ... Judge's disqualification shall be heard and determined by some other Judge.'
10
II Van Dox v. Superior Ct., 2008 Guam 7 ~ 17 (internal citations omitted).
12 Title 7 GCA § 6105 is based on 28 U.S.C. § 455 and governs the substantive grounds for 13 disqualification of judges. Section 6105 provides:
14 § 6105. Grounds of Disqualification.
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16 his or her impartiality might reasonably be questioned, but if, following complete 17 disclosure to all parties in the proceedings of the reasons for disqualification, all parties agree to having the judge continue to sit in the proceedings, he or she need 18 not disqualify himself or herself. 19 7 GCA § 6105(a) (2013) (emphasis added); See Ada v. Gutierrez, 2000 Guam 22, ~ 12, n.2.j 20 I Section 6105(a) requires disqualification for the appearance of partiality, such as when a judge's 21
"impartiality might reasonably be questioned." 7 GCA § 6105(a). In other words, 22
23 "disqualification may occur even though a judge is not actually biased or prejudiced, and has no
24 extrajudicial knowledge of disputed evidentiary facts." US. v. Salemme, 164 F.Supp.2d 49, 80 25 (D.Mass.l998) (citation omitted). Actual bias is not a prerequisite for recusal, as the 26 appearance of impropriety is enough. See Liteky v. United States, 510 U.S. 540, 548 (1994).
27
28 "The standard for recusal is the appearance of impropriety and [ ] no actual showing of bias is
necessary for recusal to lie." Dizon v. Superior Ct., 1998 Guam 3 ~ 32. The purpose of Section
In the Matter of the E~tate ofJose Castro San Nicolas Decision and Order (Statement of Objection) Probate Case No. PR00!3-03 455(a) is "to promote public confidence in the integrity of the judicial process" and to avoid 2 even the "appearance of impropriety." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
3 847, 860 (1988). "Avoiding the appearance of impropriety is as important to developing public 4 confidence in the judiciary as avoiding impropriety itself." US. v. Hollister, 746 F.2d. 420, 5
6 425-26 (8th Cir. 1984); See 28 U.S.C. § 455(a). "[J]udges and justices have 'as strong a duty to
7 sit when there is no legitimate reason to recuse as [they] do[ ] to recuse when the law and facts 8 require."' People v. Tennessen, 2010 Guam 12 ~ 49 (quoting Nichols v. Alley, 71 F.3d 347,351 9 (1Oth Cir. 1995)).
10
Courts often apply a reasonable person standard to determine whether impartiality or the 11
12 appearance of impropriety must be reasonably questioned. This standard evaluates whether a 13 reasonable person with knowledge of all the facts would conclude that a judge's impartiality 14 might reasonably be questioned. See United States v. Studley, 783 F.2d 934, 939 (9th Cir.
15 1986). The Supreme Court of Guam has adopted this objective standard and has held that "[t]he 16
17 appearance ofbias is judged from the standard of a 'reasonable person' who knows all the facts,
18 and understands the 'contexts of the jurisdictions, parties, and controversies involved,' 19 including such 'realities of the Guam judicial system' as the relatively small number of lawyers 20 in the Guam bar and 'the nature of Guam families."' Van Dox, 2008 Guam 7 ~ 32 (quoting 21 Ada, 2000 Guam 22 ~~ 12-13). Section 455(a) recusal cases are "extremely fact intensive and 22
23 fact bound, and must be judged on its unique facts and circumstances more than by comparison
24 to situations considered in prior jurisprudence." United States v. Jordan, 49 F.3d 152, 157 (5th 25 Cir. 1995).
26
27 A. Attorney Toft as Administrator's Counsel 28 Generally, when a former law clerk appears before a judge for whom they once clerked,
it is insufficient grounds to make a reasonable person question a judge's impartiality. See In re In the Matter of the Estare of Jose Castro San Nicolas Decision and Order (Statement of Objection) Probate Case No. PR0013-03
Cooke, 160 B.R. 701, 707 (D.Conn.l993) (citation omitted). To cure the appearance of'
2 impropriety, some federal courts have adopted either rules or decided cases prohibiting former 3 1 law clerks or judges from appearing before a judge for a period after their clerkship. A judge's 4 recusal is also not required where there is insufficient evidence that an attorney worked on case 5 I . . I 6 during their clerkship. See e.g. Reilly by Reilly v. S.E. Pa. Transp. Auth., 479 A.2d 973 (Pa.
7 Super. Ct.1984) (finding a judge's recusal unnecessary where the record did not suggest the 8 attorney was involved in the case during his clerkship).
9 The United States Supreme Court, First Circuit, and Eighth Circuit have adopted recusal 10
II rules, which prohibit former law clerks from practicing before their judge for a period after their
12 clerkship. See e.g. Ghee v. Artuz, 285 F.Supp.2d 328, 329 (E.D.N.Y. 2003) (citing U.S. Sup.
13 Ct. R. 7) (The U.S.S.C. prohibits a former law clerk from appearing for two years from their 14 date of separation.); In re Martinez-Catala, 129 F.3d 213,218 (1st Cir. 1997) (citing 1st Cir. R.
15
17 court for a year or more after the clerkship, but no such rule is claimed to have been violated in
18 this case."). The Eighth Circuit prohibits law clerks from appearing for a period of one year 19 after their clerkship. See Patzner v. Burkett, 779 F.2d 1363, 1372 (8th Cir. 1985). Initially, in 20 Hollister, the Eighth Circuit Court of Appeals reviewed a judge's refusal to recuse himself 21 where the prosecutor completed her clerkship three months earlier. See Hollister, 746 F.2d. at 22
23 425. The Hollister Court achieved the following precedent: it refused to adopt a bright-line
24 recusal or disqualification rule for judges, recommended a one-year insulation period before a 25 judge could hear a case involving a former law clerk, and ultimately left recusal to the judge's 26 discretion. !d. In Patzner, the Eighth Circuit Court of Appeals later explained that it had 27
28 promulgated a one-year rule for the recusal of former law clerks:
1 Federal ease law is not binding but instruetive.
In the Matter of the Estate of Jose Castro San Nicolas Decision a.fJd Order (Statement of Objection) Probate Case No. PR0013-03
In light of Hollister the Eighth Circuit Court of Appeals has promulgated a rule providing that a circuit court law clerk may not 'after leaving employment 2 participate in any way as an attorney in any case pending in this Court during his 3 or her term of service, or appear at counsel table or on brief in any case heard during a period of one year following separation from service with the Court.'
4 Patzner, 779 F.2d at 1372 n.8. (quoting 8th Cir. R. 30). The Patzner Court noted the adoption 5
6 of a recusal rule for law clerks but held, "We leave [the] question [ofajudge's disqualification]
7 to be resolved by the trial judge .... " 8 There are also federal district courts that have case law establishing similar recusal rules 9 applicable to judges and law clerks. See e.g. Smith v. Pepsico, 434 F.Supp. 524, 526 (S.D.Fla.
10 1977) (recognizing that where judges and their former law clerks were concerned, the custom ll
12 was a one-year recusal period in the district); Duke v. Pfizer, Inc., 668 F .Supp. 1031, 1036
13 (E.D.Mich. 1987) (citations omitted) ("[A] one- or two-year period of repose is enough to cure 14 any possible appearance of impropriety."); Ghee v. Artuz, 285 F.Supp.2d 328, 329 (E.D.N.Y.
15 2003) (adopting a rule disqualifying former law clerks from appearing before the court for one 16
17 year).
18 The Eclavea Heirs contend Judge Sarcinas's impartiality might reasonably be 19 questioned based on his former law clerk's appearance in this matter and provides the following 20 arguments: (1) he and Attorney Toft enjoyed a close personal and professional relationship for 21 at least seven years, and Judge Barcinas relied on Attorney Toft to conduct research relating to 22
23 his assigned docket and provide guidance on legal, procedural, and other issues; (2) with only a
24 few months between Attorney Toft's departure as Judge Barcinas's law clerk and her 25 appearance as counsel for Administrator, a reasonable person might question his impartiality, as 26 it creates the appearance of impropriety requiring recusal; and (3) while Attorney Toft may not 27 have actively worked on this probate matter, there is no evidence she was walled off, since 28
during her clerkship the court ordered the parties to show good cause why the case should not
In the Matter of the Estate ofJose Castro San Nicolas Decision and Order (Statement of Objection) Probate Case No. PR0013-03 j' be dismissed, and the parties filed their statements. Objection at 2 & 4.
2 Judge Barcinas admits Attorney Toft was his law clerk from 2006 to early 2013.
3 Answer at 4. Judge Barcinas contends Attorney Toft never worked on this case in any capacity 4 as a law clerk and has no knowledge of his inclinations regarding this case, as the case remained 5 I 6 dormant from January 10, 2007, until July 9, 2012. ld. at 6; Decision at 2. Judge Barcinas
7 indicates this case carne to the court's attention for routine status hearings on September 21, 8 2006, and January 10, 2007, during which routine continuances were granted. Jd. Judge 9 Barcinas adds that on July 6, 2012, this case carne up for sua sponte dismissal for lack of 10
II prosecution and as part of a routine docket control measure implemented by the court. ld.
12 In the present case, Attorney Toft worked as Judge Barcinas's law clerk for seven years 13 and resigned a few months ago. The Eclavea Heirs do not allege Judge Barcinas has a personal 14 bias or prejudice in this case and do not assert he has personal knowledge of disputed 15 ' evidentiary facts. The Eclavea Heirs do argue a few months is not enough time to eliminate the 16
17 potential appearance of impropriety, and that there is no evidence Attorney Toft was walled off
18 from this matter during her clerkship. 19 First, absent allegations of bias or prejudice, this Court will not assume that a reasonable 20 person knowing all of the circumstances would question Judge Barcinas' s impartiality. Instead, 21 as the Eighth Circuit has done, this Court will simply direct Judge Barcinas to the line of federal 22
23 cases cited and only recommend a one-year recusal period. Second, unlike those federal courts
24 mentioned, the Judiciary of Guam has not formally adopted a one-year recusaJ policy for judges 25 or former law clerks. Thus, this Court will not grant disqualification of Judge Barcinas or 26 Attorney Toft based on the Judiciary of Guam's informal policy, as it is just that, an informal 27 policy. Finally, without any evidence to the contrary and based on Judge Barcinas's Answer, 28
the Court determines the record is devoid of evidence indicating Attorney Toft worked on this
In the lvlatter Estate ofJose Castro San Nicolas Decision and (Statement of Objection) Probate Case No. PR0013-03 6 of9 case in any capacity. 2 2
3 B. Judge Barcinas Officiated Attorney Toft's Wedding
4 There are circumstances when a judge has a personal relationship with an attorney that 5 would make it difficult for a judge to be impartial, or to be perceived as impartial by an 6 objective observer. See United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. 1985). Courts 7 have frequently noted that a "judge's friendship with counsel appearing before him or her does 8
9 not alone mandate disqualification." In re Cooke, 160 B.R. 701, 708 (Bankr. D. Conn.l993)
10 (citing Henderson v. Dep 't of Public Safety and Corrections, 901 F.2d 1288, 1295-96 (5th Cir. II 1990)). "A prior cocounsel relationship accompanied by an additional association, such as a 12 close personal or social involvement, or an ongoing financial relationship, may cause a 13
14 reasonable person to question a judge's impartiality." Bonelli v. Bonelli, 570 A.2d 189, 192
15 (Conn. 1990) (citing Potashnick v. Port City Construction Co., 609 F.2d 1101, 1114-15 (5th 16 Cir. 1980) (holding that a judge with an extensive business and professional relationship with 17 counsel should have disqualified himself).
18 The Seventh Circuit has acknowledged that in contemporary legal culture, relationships 19
20 between a judge and attorney are common. See Murphy, 768 F.2d at 1537. That court observed
21 that "a judge need not disqualify himself just because a friend-even a close friend-appears as 22 a lawyer." !d. The court, however, noted "that when the association exceeds 'what might 23 reasonably be expected' in light of the associational activities of an ordinary judge, the unusual 24 aspects of a social relation may give rise to a reasonable question about the judge's 25
26 impartiality." !d. at 1538 (internal citation omitted). A judge's acquaintance with an attorney
27
28 2 Upon review of the case file, the Court notes the existence of two court orders: Notice of Pending Dismissal for Lack o Prosecution filed on July 9, 2012, and Order Re: Probate Closing Deadline filed on August 20, 2012. The Notice of Pendin Dismissal for Lack of Prosecution was signed by Yvonne L. Cruz, Judicial Chamber Assistant, and notified the parties "tha unless good cause can be shown in writing ... this cause will be dismissed .... " The Order Re: Probate Closing Deadline w signed by Judge Barcinas. In the A1atter of the Estate ofJose Castro San Nicolas Decision and Order (Statement of Objection) Probate Case No. PROOU-03 does not typically require disqualification, but there are cases where the degree of intimacy 2 warrants disqualification. !d. at 1538 (finding that an objective observer might reasonably 3 question a judge's neutrality, where the judge and prosecutor were close friends and had 4
5 undisclosed plans to go on a joint family vacation after trial). There are those cases that are
I
6 inapposite. See For the foregoing reasone.g. Jordan v. Henderson v. Dept. of Public Safety, 901 7 F.2d 1288, 1296 (5th Cir. 1990) (finding recusal inappropriate where one party alleged the 8 judge and opposing counsel were good friends and had known opposing counsel since he was a 9 kid).
10
II The Eclavea heirs contend Judge Barcinas flew to the mainland to attend and, possibly,
12 officiate the wedding of Attorney Toft and her husband. Objection at 2. 13 Judge Barcinas admits and contends the following: (1) as a gesture of personal and 14 professional courtesy to Attorney Toft, he traveled to the mainland to attend and officiate her 15 I I wedding; (2) he and Attorney Toft had a close personai reiationship while she was his law clerk, I
16
17 the kind that any judge and law clerk would inevitably develop over the court of seven years;
18 (3) he and Attorney Toft continue to have a close professional relationship, but only to the 19 extent that he continues to hold her in the same high professional esteem in which he holds the 20 many practicing attorneys of the Guam Bar with whose work product he has become familiar 21
22 with during his time on the bench; (4) he and Attorney Toft have a close professional
23 relationship only to the extent that during her employment as his clerk, he developed a positive 24 impression of her personal qualities, including her integrity, sense of humor, and kindness and 25 continues to view Attorney Toft in the same positive and amicable light in which he views the 26 many attorneys of the Guam bar with whose personalities he has become familiar during his 27
28 time on the bench; and (5) he denies any allegations to the extent that they reach further.
Answer at 4.
In the Matter of the Estate ofJose Castro San Nicolas Decision and Order (Statement of Objection) Probate Case No. PR0013-03 8 of9
In the case before the Court, the Court has not found any cases addressing when a prior 2 relationship between a former law clerk and judge causes a reasonable person to question a 3 judge's impartiality. Most cases deal with the attorney-judge relationship and require that a 4 reasonable person standard be applied to those unique facts. Hence, this Court's application of 5
6 cases involving the attorney-judge social relationship.
7 Here, the Eclavea Heirs allege Judge Sarcinas enjoyed a close personal and professional 8 relationship with Attorney Toft, and that he officiated Attorney Toft's wedding. This case is 9 distinguishable from Murphy, as there are no unusual aspects of this relationship that may give 10 rise to a reasonable question about the judge's impartiality. It appears Judge Sarcinas traveled 11
12 to the mainland to officiate Attorney Toft's wedding during her clerkship. That fact alone
13 makes this case distinguishable from Murphy, as the record is devoid of any ongoing personal 14 or social relationship between Judge Sarcinas and Attorney Toft. Absent any facts to the 15 contrary, a reasonable person would not find that Judge Sarcinas's impartiality should 16
17 "reasonably be questioned" to warrant disqualification.
18 CONCLUSION
19
20 For the foregoing reasons, the Eclavea Heirs have not stated sufficient grounds under 7
21 GCA § 6105(a) warranting Judge Sarcinas's disqualification. Thus, the Eclavea Heirs' 22 Statement of Objection is hereby DENIED.
23
24
25 SO ORDERED this f;\1'1 of July 2013.
26
27 HONORABLE VERNON P. PEREZ 28 JUDGE, SUPERIOR COURT OF GUA
In the Matter of the Estate Decision and Order (Statement of Objection) Probate Case No. PR0013-03