5 IN THE SUPERIOR COURT OF GUAM
7 PROBATE CASE NO. PR 0013-03 IN THE MATTER OF THE ESTATE 8 OF 9 DECISION AND ORDER JOSE CASTRO SAN NICOLAS, AND 10 ANSWER TO STATEMENT OF OBJECTION II Deceased.
14 INTRODUCTION 15
This matter came before the Honorable Arthur R. Barcinas on the 17th day of April, 16
17 2013, on review of the Heirs of Isabel S.N. Eclavea's ("Heirs"') Statement of Objection
18 pursuant to 7 GCA § 6107, regarding the Judge's qualification to rule on this matter. Attorney 19 Delia Lujan Wolff of Lujan Aguigui & Perez LLP represented the Heirs. The Court now issues 20 the following Decision and Order on the matter, and concurrently files its Answer to the Heirs' 21
22 Statement of Objection.
23 I. DECISION & ORDER STRIKING THE HEIRS' STATEMENT OF OBJECTION 24 A challenged judge may strike a statement of objection without referring the matter to a 25 disqualification judge if the statement fails, on its face, to allege any of the grounds for 26 disqualification found in Title 7 GCA § 6105. See People v. Johnny, 2006 Guam 10 at ~ 20. 27
28 "If... the petition is legally insufficient or formally defective, the judge can properly strike or Decision and Order Civil Case No. 0123-11
disregard the statement of objection without referring it to another judge." Van Dox v. Superior
2 Court, 2008 Guam 7 , 25. 7 GCA § 61 05( a) provides, in relevant part, that "[a]ny judge shall
3 disqualifY himself or herself in any proceeding in which his or her impartiality might reasonably 4 be questioned[.]" 5 The question for this Court at this juncture, as defined by Van Dox, 2008 Guam 7, 32, 6
is whether a reasonable person who knows all the facts and understands the context of the issue 7
8 would, in light of the allegations in the Heirs' Statement of Objection, question Judge
9 Sarcinas's impartiality. This objective standard "is essential when the question is how things 10 appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly 11 suspicious person. Because some people see goblins behind every tree, a subjective approach 12
13 would approximate automatic disqualification." In re Mason, 916 F.2d 384,386 (7th Cir. 1990). 1
14 The factual allegations in the Heirs' Statement of Objection are essentially that Jessica 15 L. Toft, Esq., counsel for the Administrator in this matter, was Judge Sarcinas's law clerk from 16 2005 to 2013, that Judge Sarcinas flew to the mainland to attend and officiate Attorney Toft's 17 wedding, and that Attorney Toft and Judge Sarcinas have a "close" professional and personal 18
19 relationship. The Heirs do not allege that Attorney Toft worked on this matter as a law clerk or
20 even had any exposure to this case, which lied dormant between January 10, 2007 and July 9, 21 2012. Rather, the Heirs rely on legally insufficient speculation and innuendo, see US. v. 22 Cooley, 1 F.3d 985, 993 (lOth Cir. 1993), to bridge the gap between their allegations and any 23
24 valid grounds for disqualification.
25 The Court concludes that the facts alleged by the Heirs, stripped of legally irrelevant 26 inferences and unsupported conclusions, would not cause a reasonable person with an 27
1 28 Because Guam's disqualification statute mirrors the federal disqualification statute, federal disqualification case law is useful in interpreting the Guam statute. Ada v. Guttierez, 2000 Guam 22 ~ 12 n.2. Page 2 of7 Decision and Order Civil Case No. 0123-11
appropriate understanding of the objectively determinable circumstances to question Judge
2 Barcinas's impartiality in this matter. Thus, the Heirs' Statement of Objection fails on its face to
3 assert grounds for disqualification, and is legally insufficient. Accordingly, the Heirs' Statement 4 of Objection is hereby stricken. 5
6 IT IS SO ORDERED this _ _ day of May, 2013. 7
10 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 11
14 II. VERIFIED ANSWER TO THE HEIRS' STATEMENT OF OBJECTION 15 A. Procedural Posture 16 Though the Court intends to dispose of this issue with its Decision & Order above, the 17 Court must ensure that it complies with the requirements of 7 GCA § 6107 in the event that 18
19 Supreme Court of Guam reverses the Decision & Order on appeal. Out of an abundance of
20 caution, and in the spirit of judicial transparency, the Court presently files this Answer to the 21 Heirs' Statement of Objection. The Court notes specifically that the effective filing of this 22 answer is not suspended or conditioned upon the outcome of any proceedings on appeal. The 23
24 Court also notes that, with the Heirs' Statement of Objection having been stricken, this filing
25 will not result in this matter being assigned to a disqualification judge for disqualification
26 proceedings. The Court's filing ofthis Answer should not be construed as any manner of waiver 27 or admission with respect to the status ofthe Heirs' Statement of Objection, which is stricken. 28
Page 3 of7 Decision and Order Civil Case No. 0123-11
B. Response to the Heirs' Allegations
The Court admits that Jessica L. Toft, Esq., counsel for the Administrator in this matter, 2
3 was formerly employed as Judge Barcinas's law clerk from 2006 to 2013. 4 The Court admits that, as a gesture of personal and professional courtesy to Attorney 5 Toft, Judge Barcinas flew to the mainland to attend and officiate Attorney Toft's wedding. 6 The Court admits that Attorney Toft and Judge Barcinas had a "close professional 7
8 relationship" during Attorney Toft's employment as a law clerk, of the kind that any judge and
9 law clerk would inevitably develop over the course of seven years of a law clerk's employment 10 and exemplary service. 11 Only to the extent that Judge Barcinas continues to hold Attorney Toft in the same high 12 professional esteem in which he holds the many competent practicing attorneys of the Guam bar 13
14 with whose work product he has become familiar during his time on the bench, the Court admits
15 that Judge Barcinas and Attorney Toft continue to have a "close professional relationship;" to 16 the extent that this vague and nebulous allegation reaches further, the Court denies it. 17 Only to the extent that Judge Barcinas, during Attorney Toft's employment as his law 18
19 clerk, developed a positive impression of Attorney Toft's personal qualities, including her
20 integrity, sense of humor, and kindness, and continues to view Attorney Toft in the same 21 positive and amicable light in which he views the many affable attorneys of the Guam bar with 22 whose personalities he has become familiar during his time on the bench, the Court admits that 23 Judge Barcinas and Attorney Toft have a "close personal relationship;" to the extent that this 24
25 vague and nebulous allegation reaches further, the Court denies it.
26 The Court denies that any of these facts are grounds for disqualification. 27
Page 4 of7 Decision and Order Civil Case No. 0123-11
C. Additional Material Fact
2 The Court sets forth the following additional fact material to the question of Judge
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5 IN THE SUPERIOR COURT OF GUAM
7 PROBATE CASE NO. PR 0013-03 IN THE MATTER OF THE ESTATE 8 OF 9 DECISION AND ORDER JOSE CASTRO SAN NICOLAS, AND 10 ANSWER TO STATEMENT OF OBJECTION II Deceased.
14 INTRODUCTION 15
This matter came before the Honorable Arthur R. Barcinas on the 17th day of April, 16
17 2013, on review of the Heirs of Isabel S.N. Eclavea's ("Heirs"') Statement of Objection
18 pursuant to 7 GCA § 6107, regarding the Judge's qualification to rule on this matter. Attorney 19 Delia Lujan Wolff of Lujan Aguigui & Perez LLP represented the Heirs. The Court now issues 20 the following Decision and Order on the matter, and concurrently files its Answer to the Heirs' 21
22 Statement of Objection.
23 I. DECISION & ORDER STRIKING THE HEIRS' STATEMENT OF OBJECTION 24 A challenged judge may strike a statement of objection without referring the matter to a 25 disqualification judge if the statement fails, on its face, to allege any of the grounds for 26 disqualification found in Title 7 GCA § 6105. See People v. Johnny, 2006 Guam 10 at ~ 20. 27
28 "If... the petition is legally insufficient or formally defective, the judge can properly strike or Decision and Order Civil Case No. 0123-11
disregard the statement of objection without referring it to another judge." Van Dox v. Superior
2 Court, 2008 Guam 7 , 25. 7 GCA § 61 05( a) provides, in relevant part, that "[a]ny judge shall
3 disqualifY himself or herself in any proceeding in which his or her impartiality might reasonably 4 be questioned[.]" 5 The question for this Court at this juncture, as defined by Van Dox, 2008 Guam 7, 32, 6
is whether a reasonable person who knows all the facts and understands the context of the issue 7
8 would, in light of the allegations in the Heirs' Statement of Objection, question Judge
9 Sarcinas's impartiality. This objective standard "is essential when the question is how things 10 appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly 11 suspicious person. Because some people see goblins behind every tree, a subjective approach 12
13 would approximate automatic disqualification." In re Mason, 916 F.2d 384,386 (7th Cir. 1990). 1
14 The factual allegations in the Heirs' Statement of Objection are essentially that Jessica 15 L. Toft, Esq., counsel for the Administrator in this matter, was Judge Sarcinas's law clerk from 16 2005 to 2013, that Judge Sarcinas flew to the mainland to attend and officiate Attorney Toft's 17 wedding, and that Attorney Toft and Judge Sarcinas have a "close" professional and personal 18
19 relationship. The Heirs do not allege that Attorney Toft worked on this matter as a law clerk or
20 even had any exposure to this case, which lied dormant between January 10, 2007 and July 9, 21 2012. Rather, the Heirs rely on legally insufficient speculation and innuendo, see US. v. 22 Cooley, 1 F.3d 985, 993 (lOth Cir. 1993), to bridge the gap between their allegations and any 23
24 valid grounds for disqualification.
25 The Court concludes that the facts alleged by the Heirs, stripped of legally irrelevant 26 inferences and unsupported conclusions, would not cause a reasonable person with an 27
1 28 Because Guam's disqualification statute mirrors the federal disqualification statute, federal disqualification case law is useful in interpreting the Guam statute. Ada v. Guttierez, 2000 Guam 22 ~ 12 n.2. Page 2 of7 Decision and Order Civil Case No. 0123-11
appropriate understanding of the objectively determinable circumstances to question Judge
2 Barcinas's impartiality in this matter. Thus, the Heirs' Statement of Objection fails on its face to
3 assert grounds for disqualification, and is legally insufficient. Accordingly, the Heirs' Statement 4 of Objection is hereby stricken. 5
6 IT IS SO ORDERED this _ _ day of May, 2013. 7
10 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 11
14 II. VERIFIED ANSWER TO THE HEIRS' STATEMENT OF OBJECTION 15 A. Procedural Posture 16 Though the Court intends to dispose of this issue with its Decision & Order above, the 17 Court must ensure that it complies with the requirements of 7 GCA § 6107 in the event that 18
19 Supreme Court of Guam reverses the Decision & Order on appeal. Out of an abundance of
20 caution, and in the spirit of judicial transparency, the Court presently files this Answer to the 21 Heirs' Statement of Objection. The Court notes specifically that the effective filing of this 22 answer is not suspended or conditioned upon the outcome of any proceedings on appeal. The 23
24 Court also notes that, with the Heirs' Statement of Objection having been stricken, this filing
25 will not result in this matter being assigned to a disqualification judge for disqualification
26 proceedings. The Court's filing ofthis Answer should not be construed as any manner of waiver 27 or admission with respect to the status ofthe Heirs' Statement of Objection, which is stricken. 28
Page 3 of7 Decision and Order Civil Case No. 0123-11
B. Response to the Heirs' Allegations
The Court admits that Jessica L. Toft, Esq., counsel for the Administrator in this matter, 2
3 was formerly employed as Judge Barcinas's law clerk from 2006 to 2013. 4 The Court admits that, as a gesture of personal and professional courtesy to Attorney 5 Toft, Judge Barcinas flew to the mainland to attend and officiate Attorney Toft's wedding. 6 The Court admits that Attorney Toft and Judge Barcinas had a "close professional 7
8 relationship" during Attorney Toft's employment as a law clerk, of the kind that any judge and
9 law clerk would inevitably develop over the course of seven years of a law clerk's employment 10 and exemplary service. 11 Only to the extent that Judge Barcinas continues to hold Attorney Toft in the same high 12 professional esteem in which he holds the many competent practicing attorneys of the Guam bar 13
14 with whose work product he has become familiar during his time on the bench, the Court admits
15 that Judge Barcinas and Attorney Toft continue to have a "close professional relationship;" to 16 the extent that this vague and nebulous allegation reaches further, the Court denies it. 17 Only to the extent that Judge Barcinas, during Attorney Toft's employment as his law 18
19 clerk, developed a positive impression of Attorney Toft's personal qualities, including her
20 integrity, sense of humor, and kindness, and continues to view Attorney Toft in the same 21 positive and amicable light in which he views the many affable attorneys of the Guam bar with 22 whose personalities he has become familiar during his time on the bench, the Court admits that 23 Judge Barcinas and Attorney Toft have a "close personal relationship;" to the extent that this 24
25 vague and nebulous allegation reaches further, the Court denies it.
26 The Court denies that any of these facts are grounds for disqualification. 27
Page 4 of7 Decision and Order Civil Case No. 0123-11
C. Additional Material Fact
2 The Court sets forth the following additional fact material to the question of Judge
3 Sarcinas's disqualification: at no point during Attorney Toft's employment as Judge Sarcinas's 4 law clerk did she participate in any way in the Court's evaluation of this case, perform any work 5 on this case whatsoever, discuss this case with Judge Sarcinas at all, or gain any knowledge of 6 Judge Sarcinas's inclinations regarding this case. 7
8 D. Analysis
9 The Heirs cite Ghee v Artuz, 285 F.Supp.2d 328, 329 (E.D.N.Y. 2003), which makes 10 reference to a number of local practice rules promulgated by various federal courts regarding 11 the appearance of former law clerks as attorneys before the judges for whom they clerked. 12
These rules do not constitute binding authority on the Superior Court of Guam, which has 13
14 adopted no such rules of its own. The Ghee court in fact cited with approval the decision of the
15 Eighth Circuit in Patzner v. Burkett, 779 F .2d 1363 (8th Cir.1985), which, while suggesting that 16 judges seriously consider recusal in situations where recent former law clerks appear before 17 them, ultimately declined to establish a "bright line" rule and left the issue of disqualification to 18
19 the sound discretion of the individual judge.
20 The Heirs do not cite, and the Court cannot find, any case law that stands for the 21 proposition that the appearance of a former law clerk before a judge, in and of itself, creates an 22 appearance of impropriety sufficient to necessitate the disqualification of the judge. On the 23 contrary, as stated by Judge Murguia, prior to her elevation to the Ninth Circuit, in Morga! v. 24
25 Maricopa Board of Supervisors, No. CV 07-0670-PHX-MHM, 2009 U.S. Dist. LEXIS 57063,
26 at *3 (D. Ariz. Jun. 18, 2009): 27 [C]ase law reflects that courts routinely permit their former law clerks to practice in 28 front of them, provided that the law clerk has no intimate knowledge of the judge's
Page 5 of7 Decision and Order Civil Case No. 0123-11
inclinations regarding the case. See, e.g., Ghee v. Artuz, 285 F.Supp.2d 328, 329-30 (E.D.N.Y. 2003) (denying motion to disqualify Court's former law clerk who had 2 completed a clerkship "more than a year" earlier); Sprauve v. Mastromonico, 86 F.Supp.2d 519, 530 n.36 (D.V.I. 1999) (explaining that former law clerk's appearance 3 before judge as counsel in case "can give no basis for impropriety"); Smith v. Pepsico, Inc., 434 F.Supp. 524, 526 (S.D. Fla. 1977) (explaining that the law clerk relationship 4 was not alone reason for the court to recuse itself); 8 Fed. Proc., L. Ed. § 20:80 5 (explaining that "[t]he mere fact that a party in a particular case is represented by an attorney who was formerly a law clerk for the judge hearing the case generally does not 6 require the disqualification of the judge"). 7 See also Chyba v. TXU Energy, No. 12-CV-0837 BEN (NLS) (S.D. Cal. Feb. 6, 2013) (denying 8 recusal and stating plainly that "O]udges are not prohibited from hearing cases in which a 9 former law clerk is involved."). 10
11 This case came up for sua sponte dismissal for lack of prosecution on July 6, 2012 as
12 part of a routine docket control measure implemented by the Court, in which Attorney Toft was 13 not involved. Prior to that, the case came to court's attention for routine status hearings on 14 January 10, 2007, and September 21, 2006, during which routine continuances were granted, 15 and in which Attorney Toft was not involved. Attorney Toft never worked on this case in any 16
17 capacity as a law clerk, and has no knowledge of Judge Sarcinas's inclinations regarding it.
18 The Court remains confident in its ability to administer justice fairly and impartially in 19 this case. Disqualification is not appropriate. 20 E. Conclusion 21
22 For the foregoing reasons, the Court respectfully requests that the Heirs' Statement of
23 Objection and request for disqualification be rejected, that disqualification be denied, and that 24 this case be remanded to the Court for further proceedings. 25
Page 6 of7 Decision and Order Civil Case No. 0123-11
Respectfully submitted this(]Mday ofMay, 2013.
3 HONORABLE ARTHUR R. BARCINAS 4 Judge, Superior Court of Guam 5
7 DECLARATION OF VERIFICATION 8 Pursuant to Van Dox, 2008 Guam 7, ~~12 and 24, holding that an order striking an 9 objection to competency may not alternatively be considered as an answer unless verified in the 10
11 manner specified by 6 GCA § 4308, the Honorable Arthur R. Barcinas hereby declares, under
12 penalty of perjury, with respect to any and all allegations of fact or statements of fact, that the 13 foregoing is true and correct. No verification is made concerning any conclusions of law. 14
15 SO DECLARED, this~ay ofMay, 2013. 16
17 HONORABLE ARTHUR R. BARCINAS 18 Judge, Superior Court of Guam 19
Page 7 of7