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6 IN THE SUPERIOR COURT OF GUAM 7 LOURDES A. LEON GUERRERO,/ ) CIVIL CASE NO. CV0190-25 MAGA 'HAGAN GUAHAN, GOVERNOR)
8 OF GUAM, in her official capacity, )
)
9 Plaintiff, ) DECISION AND ORDER IO ) RE. DEFENDANT'S STATEMENT vs. ) OF OBJECTION ll ) 12 DOUGLASB.MOYLAN,ATTORNEY ) GENERAL OF GUAM, in his official )
13 capacity, )
)
14 Defendant. )
15
16 INTRODUCTION
17 This matter is before the Honorable Maria T. Cenzon upon the filing of the Statement o 18 Objection ("Objection") by Defendant Douglas B. Moylan, Attorney General of Guam, in hi 19 official capacity (hereinafter "AG Moylan") on May 21, 2025. AG Moylan objects to th 20
21 Honorable John C. Terlaje's (hereinafter "Judge Terlaje") competency to preside over the above
22 captioned matter under 7 GCA § 6105 and requests his disqualification pursuant to 7 GCA § 6107 23 Having considered the Objection and Answer of Judge Terlaje, as well as the applicabl 24 statutes and case law and the relevant portions of the record, this Court issues the followin 25 Decision and Order DENYING AG Moylan's request to disqualify Judge Terlaje and reassign thi 26
27 case.
28 II
Leon Guerrero v. Moylan, Civil Case No. CV0l90-25 Decision and Order Re. Defendant's Statement of Objection Page I of20
PROCEDURAL AND FACTUAL BACKGROUND 2 A. The Brief Procedural History of this Case and Objection to Judge Terlaje'
3 Assignment
4 On March 18, 2025, Plaintiff Lourdes A. Leon Guerrero, I Maga"Hagan Guahan 5 Governor of Guam, in her official capacity (the "Governor"), filed a Complaint for Declarato 6 Judgment ("Complaint"), seeking the following relief:
7
8 [The Governor], by and through counsel, hereby seeks declaratory judgment that the Office of the Attorney General ("OAG") is unavailable to investigate or 9 prosecute [AG Moylan] and Chief Deputy Attorney General Joseph Guthrie ("CDAG Guthrie) [sic] for violations of Guam law, and authorizing [the Governor]
10 to appoint a Special Assistant Attorney General and Special Prosecutor to pursue II potential investigations and, as appropriate, criminal or civil actions against AG Moylan and CDAG Guthrie.
12 Campi. at 2. Judge Terlaje was assigned to preside over this matter on March 18, 2025. See Ntc.
13
14 of Jdg. Assign. (Mar. 18, 2025). Notice of the Assignment was served upon the Governor's lega
15 counsels ofrecord Leslie Travis, Jeffrey Moots and Daniel Morris on March 18, 2025. Id. Ther 16 is no date of service upon Defendant Moylan of the Notice of Judge Assignment on the record; 17 however, on April I, 2025, AG Moylan, by and through his counsels Assistant Attorney Genera 18 Stephen M. Durden and Attorney William B. Pole, filed a GRCP Rule 12(b)(5) Motion to Dismis 19
20 the Complaint, 1 and on April 2, 2025, Judge Terlaje issued a Notice of Oral Argument setting th
21 matter for oral argument before him on May 20, 2025. CVR 7.1 Form 3 (Apr 2, 2025). Form 3 wa 22 Served via Email by the Superior Court of Guam to Defendant's counsels AAG Durden, Attorne 23 Pole, the AG's Office-Civil, as well as to Plaintiffs counsels Travis, Motts and Morris on Apri 24
25 2,2025.Jd.
26
27
28 1 See Deft. 's GRCP Rule I 2(b)(5) Mot. to Dismiss the Comp/. & Memorandum of Points and Authorities in Support (Apr. I, 2025).
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
Between April 2, 2025 and the hearing date of May 20, 2025, the parties filed severa 2 pleadings, including: the Governor's Opposition to the Motion to Dismiss and a separate Motio 3 for leave to Amend Summons(See Opp 'n to Mot. to Dismiss (Apr. 3, 2025); Mot. for Leave t 4 Amend Summons, Memorandum ofPoints and Authorities (Apr. 3, 2025)); On April 17, 2025, A 5
6 Moylan filed a Reply To Objection to GRCP Rule 12(b) Motion to Dismiss the Complaint (Apr.
7 17, 2025) and on May I, 2025, he filed his Objection to Motion for Leave to Amend Summons 8 See Obj. to Mot. for Leave to Amend Summons (May 1, 2025). Subsequently, on May 15, 2025 9 the Governor filed her Reply Memorandum in Support of Motion for Leave to Amend Summons
11 See Reply Memorandum in Support of Mot. for Leave to Amend Summons (May 15, 2025). Fro
12 the time of Judge Terlaje's assignment to this matter on March 18, 2025, to the time of the firs 13 hearing before Judge Terlaje's court on May 20, 2025, two (2) months and two (2) days ha 14 elapsed. From the time Judge Terlaje's issued his Notice of Hearing on April 2, 2025, until th 15 May 20, 2025 hearing, 48 days had elapsed.
16
17 On May 20, 2025, Judge Terlaje held the first hearing in this matter, wherein Attorney
18 Leslie A. Travis and Jeffrey A. Moots appeared on behalf of the Governor, and AG Moyla 19 appeared with Attorney William B. Pole. See Min. Entry (May 20, 2025). At the hearing, a sideb 20 meeting occurred as well as other case matters. Id. As set forth in AG Moylan's Objection, A 21 Moylan raised the issue of Judge Terlaje's disqualification at the sidebar meeting. See Obj. at ,r 7.
22
23 However, the minutes do not memorialize the sidebar discussion.
24 On May 21, 2025, AG Moylan filed his Objection (the "Objection") and personally serve 25 Judge Terlaje on May 22, 2025, as required under 7 GCA § 6107. See Deel. of Svc. (May 22 26 2025). By the date of personal service upon Judge Terlaje of AG Moylan's Objection, 50 days ha 27
28
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection elapsed. Judge Terlaje filed his Answer to AG Moylan's Objection (the "Answer") on May 23 2 2025.
3 1. The Basis of AG Moylan's Objection.
4 The gravamen of AG Moylan's Objection is that Judge Terlaje is disqualified fro 5
6 presiding over this matter based upon the mandate of 7 GCA § 6105(a) requiring the judge t
7 "disqualify oneself when the Judge's impartiality might reasonably be questioned." Obj. at 'If 25. 8 (citing 7 GCA § 6105(a)). AG Moylan alleges that "[Judge Terlaje] was appointed by Plainti 9 Governor to his current position as a Judge, and this case concerns, at its core, the power of th 10
11 Governor to potentially remove the Attorney General by appointing a prosecutor to criminal [sic]
12 prosecute to remove the Attorney General." Id. at 'I] 20. AG Moylan also alleges that-because th 13 Governor was formerly the President and CEO of BOG, has a son who is the current president an 14 CEO of BOG, is a major shareholder in Bank of Guam ("BOG"), and is a recipient of a pensio 15 from BOG-Judge Terlaje must disqualify himself "when the Judge knows he has a financi 16
17 interest in the subject matter where financial interest is defined as ownership of a legal or equitabl
18 interest, however small." Id. at 'I] 33. AG Moylan supports his financial-interest argument b 19 identifying Judge Terlaje's two (2) secured loans procured while he was in private practice and 20 current checking account-all with BOG. See Id. at 'l]'l] 42-43.
21 In addition, AG Moylan cites to Judge Terlaje's issuance of a Temporary Restraining Orde 22
23 in CV0290-25, claiming that the order was issued "without notice and on request of Plaintif
24 Governor, and such Order failed to comply with almost all the requirements for a Tempora 25 Restraining Order." Id. at 'I] 22. AG Moylan alleges that these facts "demonstrate an extradjudicia 26 source to suggest the possibility of bias." Id. at 'I] 23.
27
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Leon Guerrero v. Moylan, Civil Case No. CV0 l 90-25 Decision and Order Re. Defendant's Statement of Objection
2. Judge Terlaje's Answer.
2 Judge Terlaje's Answer to the Objection is lengthy and detailed, and the Court finds th 3 following responses, made under penalty of perjury, particularly relevant to this Court's recus 4 determination:
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6 ,i 9. That Defendant's Statement of Objection requests my disqualification on the basis that I was appointed to the judiciary by Governor Leon 7 Guerrero, Plaintiff in this case, on October 25, 2022; 8 ,i 10. That existing Guam caselaw cited by Defendant, Ada v. Gutierrez, 9 specifically rejected the contention that a reasonable person would assume a judge could not be impartial in a case involving the person who appointed him. 2000 Guam 22,i 22. In this case, the Guam Supreme Court cited US.
11 v. Gordon, where a court ruled that a judge appointed by President Reagan could oversee a case in which the defendant was accused of attempting to 12 murder the former president. US. v. Gordon, 974 F .2d 1110, 1114 (9th Cir.
1992); see In re United States, 666 F.2d at 696 (ruling that a judge could 13 hear a case involving a governor for whom he did favors in the distant past).
14 The Court further stated that "[i]f a court find a judge fit to hear a case as grave as Gordon, we could not find differently in the case at hand." Ada, 15 2000 Guam 22 ,i 22. The Guam Supreme Court determined that "[w]ithout knowledge of specific deeds, we have no reason to assume that elected 16 officials place individuals in the judiciary for the purpose of having 17 someone in the court who will always favor them." Id. at ,i 23. As in Ada, Defendant in this case has not offered or even alleged any "specific deeds"
18 which might suggest that I would favor the elected official who appointed me.
19
20 ,i 11. That recusal for the sole reason that the undersigned was appointed by Governor Leon Guerrero would constitute allowing the recusal statutes to 21 become "presumptive" and would result in the undersigned recusing myself "solely because a party claims an appearance of partiality." San Agustin, 22 2024 Guam 2 ,i 24.
23 ,i 12. That Defendant's Statement of Objection also requests my 24 disqualification on the basis that the undersigned received a loan from and 25 has a checking account with the Bank of Guam, and Plaintiff is a current shareholder and former President and CEO of said Bank;
26 ,i 13. That a reasonable person on Guam, who knows all the facts, and 27 understands the "contexts of the jurisdictions, parties, and controversies 28 involved," including such "realities of the Guam judicial system" as the relatively small number oflawyers in the Guam bar and "the nature of Guam
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection families," is unlikely to construe the undersigned's ordinary relationship with a Guam business as appearing to create bias. The loan and account 2 which the undersigned holds with the Bank of Guam were obtained in the 3 ordinary course of business just as they would have been with any member of the public, and have never been personally influenced or controlled by 4 Plaintiff. The undersigned disbelieves that a reasonable person "with knowledge of all the facts would perceive a significant risk" that I would 5 resolve this case for Plaintiff"on a basis other than the merits" based on my 6 possessing a Bank of Guam account or loan.
7 ,i 14. That it furthermore appears that movant is engaging in conduct the 8 Supreme Court of Guam has specifically condemned by raising insignificant connections between myself and Plaintiff as a means to have 9 another judge preside over this case. See San Agustin v. Superior Court, 2024 Guam 2 ,i 24 ("7 GCA § 6105 [] is not intended to 'bestow veto power 10 over judges or to be used as a judge shopping device."') (citations omitted); 11 ,i 15. That in paragraph 22 of his Statement of Objection, Defendant cites 12 the undersigned's granting of a Temporary Restraining Order against Defendant in CV290-25, arguing it is an "extrajudicial source to suggest the 13 possibility of bias." However, Defendant fails to provide any support for 14 how this order suggests any possibility of bias.
15 ,i 16. That the undersigned issued the TRO on April 28, 2025, after careful review of all documents filed and full consideration of the law and facts in 16 that case. Ten days later at the hearing for the preliminary injunction in the 17 same case held on May 8, 2025, Defendant requested my recusal in CV290-
25 because he had filed a witness list which included Senator Therese 18 Terlaje, who is a sister of the undersigned. This witness list was filed by Defendant on the same day of the hearing at 8:21 a.m., for a hearing 19 scheduled for 9:00 a.m. Counsel for Plaintiff expressed concern at the time 20 that Defendant was "judge shopping", but I agreed to disqualify myself at Defendant's representations that Senator Terlaje was a material witness in 21 the hearing. After my disqualification in CV290-25, I became aware that Senator Terlaje was never called as a witness in the hearing on the 22 Preliminary Iajunction under Judge Elyze Iriarte.
23 ,i 17. That from these circumstances, it is reasonable to infer that AG 24 Moylan was disagreed with [sic] the undersigned granting the TRO, and added Senator Terlaje to the witness list for the purpose of disqualifying the 25 undersigned from the case. Defendant's citation to that TRO as an 26 "extrajudicial source to suggest the possibility of bias" in the present case further cements the idea that AG Moylan disagreed with my decision on the 27 TRO and hopes to "veto" my sitting on his case by raising insignificant 28 connections between myself and Plaintiff. AG Moylan is seeking to "shop"
for a different judge in this case, a behavior which has been explicitly
Leon Guerrero v. Moylan, Civil Case No. CV0\90-25 Decision and Order Re. Defendant's Statement of Objection disavowed by the Guam Supreme Court. See San Agustin v. Superior Court, 2024 Guam 2 124.
2
3 Ans. at 119-17.
4 DISCUSSION AND ANALYSIS 5 A. The Law Governing Judicial Disqualification Is Set Forth in Guam Statute and In th 6 Model Code of Judicial Conduct.
7 I. Guam Statutory Mandates. 8 Judicial disqualifications are governed by the substantive rules of 7 GCA § 6105 and th 9 procedural rules of7 GCA §§ 6106 and 6107. The relevant portion of the disqualification statut
11 is Sections 6105(b)(l) and (4),2 which require that:
12 (b) A Judge shall also disqualify himself or herself in the following circumstances, but if, following complete disclosure to all parties in the 13 proceeding of the reasons for his or her disqualification, all parties agree to 14 having the Judge continue to sit in the proceedings, he or she need not disqualify himself or herself:
15 (1) Where he or she has a personal bias or prejudice concerning a party, 16 or personal knowledge of disputed evidentiary facts concerning the 17 proceeding;
18
19 (4) Where he or she knows that he or she, individually or as a fiduciary, 20 or his or her spouse or minor child residing in his or her household, has a financial interest in the subject matter in controversy or is a 21 party to the subject matter in controversy or is a party to the proceeding, or in any other interest that could be substantially 22 affected by the outcome of the proceeding;
23 Correspondingly, Section 6106 compels a judge to disclose a disqualification enumerated unde 24 6105: 3 25
26 Whenever a Justice or Judge shall have knowledge of any fact or facts which, under the provisions of6105 of this Chapter, disqualify him or her 27
28 2 7 GCA §§ 6105(b)(l) & (4)(emphasis added).
3 7 GCA § 6106 ( emphasis added).
Leon Guerrero v. Moylan, Civil Case No. CV0I90-25 Decision and Order Re. Defendant's Statement of Objection to sit or act as such in any action or proceeding pending before him or her, it shall be his or her duty to declare the same in open court and cause a 2 memorandum thereof to be entered in the minutes. It shall be the duty of the 3 clerk to transmit forthwith a copy of such memorandum to each party or his or her attorney who shall have appeared in such action or proceeding, except 4 such parties as are presented in person or by attorney when the declaration is made.
5
6 If a judge fails to disclose a disqualifying factor under Section 6105, then, pursuant t 7 Section 6107, any party to the action who has appeared in the case may raise the objection t 8 competency. 4 In this regard, Section 6107 provides, in relevant part, as follows:
9 Whenever a Justice or Judge who shall be disqualified under the provisions 10 of this Chapter to sit or act as such in any action or proceeding pending 11 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 12 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 or any 13 trial of any issue of fact or law in such action or proceeding before such 14 Justice or Judge, and setting forth the fact or facts constituting the ground of the disqualification of such Justice or Judge. Copies of such written 15 statement shall forthwith be served by the presenting party on each party, or his or her attorney, who has appeared in the action or proceeding and on 16 the Justice or Judge alleged in such statement to be disqualified.
17 Within ten (10) days after the service of such statement as above provided, 18 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 19 his or her consent in writing that the action or proceeding continue without 20 him or her, or 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 21 forth any additional fact or facts material or relevant to the question of his or her disqualification. The clerk shall forthwith transmit a copy of the 22 Justice's or Judge's consent or answer to each party or his or her attorney 23 who shall have appeared in such action or proceeding. Every such statement and every answer shall be verified in the manner prescribed for the 24 verification of pleadings. The statement of a party objecting to the Justice or Judge on the ground of his or her disqualification shall be presented 25 at the earliest practicable opportunity after his or her appearance and 26 discovery of the facts constituting the ground of the Justice's or Judge's disqualification, and in any event before the commencement of the 27
28 4 7 GCA § 6107 ( emphasis added).
Leon Guerrero v. Moylan, Civil Case No. CV0l90-25 Decision and Order Re. Defendant's Statement of Objection hearing ofany issue offact in the action or proceeding before such Justice or Judge.
2
3 No Justice or Judge who shall deny his or her qualification shall hear or pass upon the question of his or her own disqualification, but in every case the 4 question of the Justice's or Judge's disqualification shall be heard and 5 determined by some other Judge. The Presiding Judge, or next senior Judge, if it is the Presiding Judge's disqualification that is being requested, shall 6 make such assignment within five (5) days after receiving from the clerk the notice that the statement of disqualification has been filed. In the case 7 of a Justice's disqualification, the matter shall be heard by the Supreme 8 Court constituted without the questioned Justice.
9 If such Judge admits his or her disqualification, or files his or her written consent that the action or proceeding be tried before another Judge, or fails 10 to file the answer within the ten (I 0) days allowed, or if it shall be 11 determined after the hearing that he or she is disqualified, the action or proceeding shall be heard and determined by another Judge of the Superior 12 Court who is not disqualified. Such other Judge shall be assigned in the same manner as the Judge who was disqualified was assigned to hear the 13 case initially.
14 2. Model Code of Judicial Conduct: Canon 3 15 Canon 3 of the Model Code of Judicial Conduct 5 (the "Model Code") mandates that "[a]
16
17 judge shall perform the duties of judicial office impartially and diligently," and 3E.(l)(a) and (c
18 of the Model Code's disqualification factors mirror those of7 GCA §§ 6105(b)(l) and (4), 6 19 E. Disqualification.
20 ( 1) A judge shall disqualify himself or herself in a proceeding in which the 21 judge's impartiality might reasonably be questioned, including but not limited to instances where:
22 (a) the judge has a personal bias or prejudice concerning a party or a 23 party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; ...
24 (c) the judge knows that he or she, individually or as a fiduciary, or the 25 judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic 26 5 27 The ABA's Canon of Judicial Ethics shall apply to and govern the conduct of Judges of the Superior Court of Guam 7 GCA § 6103. The Model Code of Judicial Conduct applicable in Guam was adopted by the House of Delegates o 28 the American Bar Association on August 7, 1990, and amended on August 6, 1997, August 10, 1999, and August 12 2003. It is hereinafter referred to as the "Model Code." 6 7 GCA §§ 6105(b)(I) & (4)(emphasis added).
Leon Guerrero v. Moylan, Civil Case No. CV0 190-25 Decision and Order Re. Defendant's Statement of Objection interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially 2 affected by the proceeding;
3 B. AG Moylan has waived his right to object to Judge Terlaje's qualification to presid 4 over this matter. 5 As highlighted, above, Section 6107 requires that the statement of a party objecting to th 6
7 opportunity after his or her appearance and discovery of the facts constituting the ground of th 8
9 Justice's QI Judge's disqualification, and in any event before the commencement of the hearin
10 of any issue offact in the action or proceeding before such Justice or Judge." 7 GCA § 610 11 (emphasis added). The Guam Supreme Court in Van Dox has confirmed that statements o 12 objection shall "be presented at the earliest practicable opportunity after discovery of the fact 13
14 constituting the ground for disqualification." Van Dox v. Super Ct. (Alcorn), 2008 Guam 7 ,i 44
15 Thus, the controlling law in Guam "[w]ith respect to the statutory provision requiring tha 16 disqualification be urged at the 'earliest practicable opportunity,' the intention is 'clear that failur 17 to comply with the provision constitutes a waiver."' Id. ,i 45 (quoting Caminetti v. Pac. Mut. Ins.
18 Co. of Cal., 139 P.2d 930, 933 (Cal. 1943)(emphasis added)). A finding of timeliness should b 19
20 construed liberally in the interest of justice. Id. ,i 45 (citing Eagle Maint. & Supply Co. v. Supe
21 Ct., 16 Cal. Rptr. 745, 747 (Dist. Ct. App. 1961 )). A timely statement of objection is made "prio 22 to any hearing before the challenged judge in the matter." Id. ,i 46 (citing Hollingsworth, 236 Cal 23 Rptr. at 195-96). Van Dox also cites to People v. Panah, where the court held a disqualificatio 24 untimely because the facts of the case were known in early September, but the moving party waite 25
26 until the eve of trial in November to move for disqualification. Id. ,i 46 (citing People v. Panah
27 107 P.3d 790, 824). 28
Leon Guerrero v. Moylan, Civil Case No. CV0l90-25 Decision and Order Re. Defendant's Statement of Objection
More recently, in People v. Wia, 2020 Guam 17, the Guam Supreme Court applied th 2 "silence-by-waiver" rule adopted in San Union, Inc. v. Arnold, 2017 Guam 10, and held tha 3 "[r]ather than interpreting "agree" to mean that the parties must expressly agree to waive th 4 judge's disqualification, we held that remaining silent constitutes waiver, at least in the context o 5
6 7 GCA § 6105(a), "[t]o avoid the possibility of parties 'l[ying] in wait, raising the recusal issu
7 only after learning the court's ruling on the merits.'" Id. (quoting Phillips v. Amoco Oil Co., 79 8 F.2d 1464, 1472(1lthCir.1986),cert. denied,481 U.S.1016(1987)). Thus,Guamallowsforth 9 waiver of Section 6105(b) conflicts by the silence of the party who sits on his right to object. Id.
10
11 at 129. 7
12 Judge Terlaje does not raise the issue of timeliness in his Answer; however, the Court find 13 that AG Moylan has effectively waived the issue of Judge Terlaje's disqualification throng 14 "silence-by-waiver" as applied in Wia. Indeed, disqualification of a judge should be brough 15 forward "at the earliest practicable opportunity . .. before the commencement ofthe hearing of an 16
17 issue of fact in the action or proceeding before such Justice or Judge." 7 GCA 6107 (emphasi
18 added); see also Van Dax 146. Although it is not clear whether AG Moylan was aware of the judg 19 assignment on March 18, 2025, unequivocal proof of notice is Judge Terlaje's Notice of Hearin 20 which he issued and which was served upon the parties on April 2, 2025. During the interim 21 substantive motions were filed by the parties for Judge Terlaje to make a ruling leading up to th 22
23 May 20, 2025 hearing.
24
25
26 7 27 See also, Charette v. Charette, 60 A.3d 1264, 1270-1271 (Maine 2013)(iudge had hired a party's brother-in-law t do construction work for him and his daughter was close friends with the same party's daughter, opposing party shout 28 have raised an objection based upon the appearance of impropriety before the court issued a judgment unfavorable t him; the appellate court finding that the facts were known to the party because they occurred overthe course of twenty seven years while all were living in the same small community).
lean Guerrera v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
In viewing the circumstances of the matter and AG Moylan's specific objections, the Cou 2 finds that the "earliest practicable opportunity" for AG Moylan to have raised the issue of Judg 3 Terlaje's disqualification was upon Judge Terlaje's assignment, or at a minimum, "at the earlies 4 practicable time" after Judge Terlaje issued his Notice on April 2, 205. 8 AG Moylan objects t 5
6 Judge Terlaje's assignment due to Judge Terlaje's appointment to the bench by the Governor an
7 Judge Terlaje's financial interest in BOG. Judge Terlaje's appointment to the bench on October 25 8 2022, is not a secret or hidden fact unavailable to the public. 9 It stands to reason and common sens 9 that AG Moylan was fully and certainly aware of Judge Terlaje's appointment by the Governor a 10
11 the time of his assignment to this matter, evinced by AG Moylan's submission of Exhibit F ofhi
12 Objection that displays the news of Judge Terlaje's appointment on social media. See Obj., Exh. F.
13 Further, Judge Terlaje's statutory disclosure of his financial information10 is also subject to publi 14 scrutiny and obtained by AG Moylan in support of his Objection. See Obj., Exh. E (Judge Terlaje'
15 certified financial disclosure for calendar year 2023). Thus, the Court finds that AG Moylan'
16
17 objection was untimely given that his Objection was made over two months after Judge Terlaje'
18 assignment to this matter; or, assuming he was not aware of the assignment until Judge Terlaj 19 issued the Notice of Hearing on April 2, 2025, over 48 days after the Notice and not until th 20 hearing on May 20, 2025. As such, AG Moylan has effectively waived his right to object to Judg 21 Terlaje's assignment to this matter.
22
23 II
24 II 25
26 8 This finding of AG Moylan's timeliness to raise his Objection is construed liberally in the interest of justice a 27 prescribed in Van Dox 1f 45.
9 Certainly, Judge Terlaje's appointment was not just a public announcement, but his appointment was also subject t
28 scrutiny by the Guam Legislature as is the case for all Superior Court Judge appointments.
10 See 4 GCA Chapter 13 "Public Official Disclosure Act."
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
C. Aside from the waiver precluding his Objection, Judge Terlaje's judicial nominatio by the Governor is not sufficient grounds for his disqualification.
2
3 Even if the Court considers arguendo that AG Moylan did not waive his right to object
4 the contention that Judge Terlaje is disqualified from presiding over this matter because th 5 Governor nominated him, without more, is insufficient to disqualify him under 7 GCA § 6105(a).
6 Section 6105(a) mandates that "[a]ny Judge shall disqualify himself or herself in any proceedin 7 in which his or her impartiality might reasonably be questioned, but if, following complet 8
9 disclosure to all parties in the proceeding of the reasons for disqualification, all parties agree t
10 having the Judge continue to sit in the proceedings, he or she need not disqualify himself o 11 herself."
12 In guiding the recusaljudge's in determining whether to grant an objection to competenc 13
14 on the basis of the disqualification statute, the Guam Supreme Court has instructed:
15 "Guam courts apply an objective, reasonable person standard in determining whether there is an appearance of bias meriting 16 disqualification." [People v. Tennessen, 2010 Guam 12] ,i 49 (citing 17 Johnny, 2006 Guam 10 ,i 20). Under this standard, a reasonable person is assumed to know "all the facts, and understands the 'contexts of the 18 jurisdictions, parties, and controversies involved,' including such 'realities of the Guam judicial system' as the relatively small number of lawyers in 19 the Guam bar and 'the nature of Guam families.' " Van Dax, 2008 Guam 7 20 ,i 32 (quoting Ada, 2000 Guam 22 ,i,i 12-13); see also San Union, Inc. v.
Arnold, 2017 Guam 10 ,i 24. "A court should not hypothesize about what 21 the reasonable person would believe only upon hearing the moving party's allegations. Instead, it should decide what the reasonable person would 22 believe about a judge's partiality given all the relevant facts in the 23 controversy." Ada, 2000 Guam 22 ,i 12. Under this objective test, the court "inquires whether a reasonable person would have a reasonable basis for 24 questioning the judge's impartiality, not whether the judge is impartial."
Tennessen, 2010 Guam 12 ,i 33 (citing Sule v. Guam Bd. ofDental Exam'rs, 25 2008 Guam 20 ,i 14). In other words, "the court asks whether a person with 26 knowledge of all the facts would perceive a significant risk that the judge will resolve the case on a basis other than the merits." Id. (citing Clemens 27 v. U.S. District Court, 428 F.3d 1175, 1178 (9th Cir. 2005) (per curiam)). 28
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
[24] "[T]he recusal statutes should not be so broadly construed so as to become preswnptive .... " Dizon, 1998 Guam 3 i! 9. "7 GCA § 6105 [ ] is not 2 intended to 'bestow veto power over judges or to be used as a judge 3 shopping device."' People v. Camaddu, 2015 Guam 2 ,i 80 (quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (per curiam)); cf. Ada, 2000 4 Guam 22 ,i 21 ("We do not want to open a Pandora's box in which parties begin drawing a judge's family tree each time it seems that a judge will rule 5 against them."). "The grounds asserted in a recusal motion 'must be 6 scrutinized with care, and judges should not recuse themselves solely because a party claims an appearance of partiality."' Tennessen, 20 IO Guam 7 12 ,i 49 (emphasis added) (quoting In re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001)). This court has stated that "neither 'frfumor, speculation, 8 beliefs, conclusions, innuendo, suspicion, opinion, and similar non-
9 factual matters[,/ [nor/ mere familiarity with the defendant' give rise to disqualification." Id. (alterations in original) (quoting Nichols, 71 F.3d at 10 351 ). A judge should not "distance themselves from cases at the slightest 11 suggestion." Ada, 2000 Guam 22 ,i 15. "A judge's duty to hear a case and keep the wheels of justice rotating is just as strong as his or her duty to 12 remove himself or herself if a reasonable person would not believe in his or her impartiality." Id.
13
14 *7 [25] Our recusal statute promotes fairness by avoiding the appearance of bias, but a party's one-sided perception of an appearance of bias is not 15 grounds for disqualification. Sule, 2008 Guam 20 ,i 20. 16
17 San Agustin v. Superior Ct. of Guam, 2024 Guam 2, ,i,i 23-25.
18 In contending that the Governor's mere appointment of Judge Terlaje to serve as a judg 19 of the Superior Court therefore creates an automatic disqualification to preside over this case, A 20 Moylan cites to Ada v. Gutierrez, 2000 Guam 22. However, it is unclear whether AG Moylan i 21 arguing that Ada supports Judge Terlaje's qualification or whether he attempts to distinguish i 22
23 from the Objection at bar. He argues first that Ada is distinguishable because "not every judge o
24 the Superior Court was appointed by the Plaintiff, i.e. not every judge would appear partial.' 25 However, he then likens the Governor's request in this case to Ada "wherein the Court had t 26 decide who would be the next Governor of Guam and there were no judges available to hear th 27
28 case who were not appointed by either the incumbent Governor nor the candidate seeking t
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection become Governor." Objection at ,r 29. As such, the Court shall consider Ada as applicable in thi 2 matter to find that Judge Terlaje is not disqualified from presiding over this matter merely becaus 3 the Governor appointed him.
4 Indeed, Ada raised the fact that every Judge and Justice had been appointed by one of th 5
6 parties, thus "every judge could be accused of appearing partial," and "[i]f every judge coul
7 appear partial, it becomes less important for Judge Manibusan to disqualify himself." Ada ,r 14. 8 However, Ada continued further:
9 Notwithstanding our goal in Dizon to encourage disclosure of facts and urge judges to examine their potential for bias, we still noted, "[T]he recusal statutes should not ll be so broadly construed so as to become presumptive ... " Dizon, 1998 Guam 3 at ,r 9. A judge's duty to hear a case and keep the wheels of justice rotating is just 12 as strong as his or her duty to remove himself or herself if a reasonable person would not believe in his or her impartiality. Kansas Public, 85 F.3d at 1362; In 13 re Allied-Signal Inc., 891 F.2d at970;National Union, 839 F.2d at 1229. We would 14 not want judges to construe our decision in Dizon to mean that they should distance themselves from cases at the slightest suggestion. Judge Manibusan had 15 valid reasons to hear this case and not just reasons to consider disqualifying himself. 16 Id. ,r 15 (emphasis added). It is clear that Ada confirms that a judge's duty to sit is as strong as hi 17 duty to remove himself"if a reasonable person would not believe in his or her impartiality." To b 18 clear, and contrary to AG Moylan's contention, Ada is controlling caselaw for a sitting Judge t 19
20 not recuse themselves merely because one of the parties had appointed said Judge. Abundant!
21 compelling to this Court's analysis is Ada's citation to U.S. v. Gordon. See Id. ,r 22 (citing U.S. v. 22 Gordon, 974 F .2d 1110, 1114 (9th Cir.1992)). In Gordon, a judge appointed by President Reaga 23 was found fit to sit on a matter wherein the defendant was accused of attempted murder of th 24
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Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
President. Id. "If a court could find a judge fit to hear a case as grave as Gordon, we could not fin 2 differently in the case at hand." Id. 11 3 AG Moylan raises the issue of the political nature of the proceedings:
4 The issues raised by Plaintiff Governor raise a political question, apart from being 5 within the providence of the Guam Legislature to provide for establishing a public 6 prosecutor to investigate and prosecute the person holding the position as Attorney General of Guam.
7 Obj. at ,r 30. The Court does not agree with AG Moylan that the Declaratory Judgment is 8
9 "political question," but rather the Declaratory Judgment seeks to determine the legal authority o
10 the Governor to act within the provisions of the Organic Act. The question is a matter of statuto 11 interpretation and does not invoke the "political-question" doctrine.
12 The "political-question" doctrine has been defined as follows:
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14 The political question doctrine outlined in Marbury v. Madison [5 U.S. 137 (1803)]
is primarily a function of separation of powers. Baker, 369 U.S. 186, 82 S.Ct. 691.
15 "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." Marbury, 5 U.S. at 16 170. The doctrine safeguards the Constitution by ensuring that questions of 17 "political" nature are appropriately within the authority of the Executive or Legislative Branches and, thus, are nonjusticiable.... ".
18 Caston v. F Hoffmann-La Roche, Inc., 729 F. Supp. 3d 930, 946 (N.D. Cal. 2024). The U.S.
19
20 Supreme Court in Baker v. Carr, 82 S.Ct 691,369 U.S. 186 (1962), set forth a lithmus test to
21 determine if a question is political or whether it is an interpretation of statutory law and, therefore, 22 within the powers of the judiciary. The Baker factors are:
23 (1) the issue has been committed to a coordinate political department by 24 Constitutional text; 25
26 11 The Court cites to Gordon as relied upon in Ada, but the Court is similarly persuaded by more recent cases involvin 27 judges sitting in proceedings in which one of the parties appointed the judge. The D.C. Circuit Court in In re. Executiv Office of President found that a judge sitting in a proceeding wherein the President that appointed the judge wa 28 presiding "[would] not 'create in reasonable minds, with knowledge of all the relevant circumstances that a reasonabl inquiry would disclose, a perception that [my] ability to carry out judicial responsibilities with integrity, impartiality and competence [would be] impaired." In re. Executive Office of President, 215 F .3d 25 (D.C. Cir.2000).
Leon Guerrero v. Moylan, Civil Case No. CV0 190-25 Decision and Order Re. Defendant's Statement of Objection
(2) the judiciary lacks sufficient discoverability or management standards to resolve the issue;
2 (3) the issue is impossible to decide without an initial policy determination clearly 3 outside judicial discretion;
(4) undertaking independent resolution by the court expresses lack of respect due 4 coordinate branches of government;
(5) a political deci'sion has already been made and there is an unusual need to 5 adhere to that decision without question; or 6 (6) a multitude of pronouncements from various departments on a single issue is potentially embarrassing.
7
8 Caston, 729 F. Supp. 3d at 946 (citing Baker, 369 U.S. at 217, 82 S.Ct. 691 (rephrased for 9 clarity)). The Baker test is applied on a case-by-case basis, and the factors often collapse into one
11 another. Republic ()f Marshall Islands v. United States, 865 F.3d 1187, 1200 (9th Cir. 2017). To
12 find a political question under Baker, only one of the factors must be present. Id. 13 AG Moylan has not articulated any basis upon which the political-question is implicated 14 within the factors as set forth in Baker, and it is not clear how the Declaratory Judgment, which 15 seeks a determination by the assigned court of whether the Governor is empowered, under the 16
17 Organic Act of Guam, to appoint and special assistant attorney general and special prosecutor is
18 a political question under Marbury vs. Madison and its progeny. See Complaint for Declaratory 19 Judgment at ,r,r 79, 80. As such, AG Moylan has not satisfied his burden of establishing grounds 20 for the disqualification of Judge Terlaje merely because he was the Governor's appointee.
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22 D. Judge Terlaje's financial accounts with Bank of Guam is not a sufficient basis fo disqualification because Bank of Guam is not a party to these proceedings.
23 AG Moylan's next point of objection is Judge Terlaje's two (2) secured loans, a checkin 24
25 account, and two (2) Paycheck Protection Program ("PPP") loans with BOG while he was i
26 private practice. AG Moylan cites to 7 GCA § 6105(b)(4), arguing that Judge Terlaje should hav 27 recused himself"know[ing] he has a financial interest in the subject matter where financial interes 28 is defined as ownership ofa legal or equitable interest, however small." Obj. at ,r 33.
Leon Guerrero v. Moylan, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
A plain reading of § 6105(b)(4) requires that a Judge disqualify themself from 2 proceeding when they know that they have a financial interest "in the subject matter in controvers 3 or is a party to the subject matter in controversy or is a party to the proceeding." 7 GCA 4 6104(b)(4). In these proceedings and a reading of the Complaint for Declaratory Judgment file 5
6 by the Governor, BOG is not a party to the proceeding, nor is BOG mentioned as any part of th
7 subject matter in controversy as prescribed in § 6104(b)(4). As described earlier in the background 8 the Governor's Complaint requests a Declaratory Judgment against AG Moylan and for th 9 Governor to appoint a special prosecutor. See Comp/. (Mar. 18, 2025). The argument that Judg 10
II Terlaje's current accounts with BOG would somehow dictate the outcome of this particular cas
12 because the Governor is BOG's CEO's mother is tenuous, at best, and is illustrative of the Gu 13 Supreme Court's admonishment against "[r]umor, speculation, beliefs, conclusions, innuendo 14 suspicion, opinion, and similar non-factual matters[,]" serving as the basis for judicia 15 disqualification. See, San Agustin, supra. On this basis alone, the Court finds that disqualificatio 16
17 is not warranted.
18 Notwithstanding the above discussion, the Court finds it appropriate to discuss persuasiv 19 authority in arriving at its decision. In US. v Rogers, the defendant pied guilty to mail fraud, an 20 Bank of America was the named victim. Rogers, 119 F.3d 1377, 1379 (9th Cir. I 997). The judg 21 was a stockholder of Security Pacific, which receives shares in Bank of America. Id. at 1384 22
23 Additionally, the judge owned property that had been leased to a branch of Security Bank, of who
24 would be later acquired by Bank of America. Id. 12 The judge originally sentenced the defendant i 25 the matter to pay restitution to Bank of America. Id. However, after appeal, restitution to Banko 26
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28 12 Before sentencing, the judge did not have shares or any kind of interest in Bank of America. Rogers, 1379. It wa during the pending appeal of the matter that the judge obtained an interest in Bank of America. Id.
Leon Guerrero v. Moy/on, Civil Case No. CV0190-25 Decision and Order Re. Defendant's Statement of Objection
America was not ordered at resentencing. Id. Rogers held that the above facts do not raise 2 reasonable question of impartiality. Id. First, Bank of America could not have any financial impac 3 from the proceedings since restitution was not ordered at resentencing. Id. Further, Rogers foun 4 that the judge had no obligation to disclose a financial interest when the business entity or third 5
6 party, of whom a judge has a financial interest, is not a party to the proceedings. Id. (citing to US.
7 v. Sellers, 566 F.2d 887 (4th Cir.1977). 8 Here, the Governor as Plaintiff and AG Moylan as Defendant are the named parties in th 9 instant proceedings. See Comp/. BOG is not a named party to these proceedings, nor does BO lO
ll have any ancillary interest in the proceeding. AG Moylan admits in his Objection that "[t]he tw
12 business PPP loans with the Bank issued during the COVID-19 pandemic have since bee 13 forgiven." Obj. at ,i 34. Thus, because Bank of Guam is not a party to the proceedings and not 14 subject of controversy in these proceedings pursuant to§ 6105(b)(4) and Rogers, the Court find 15 that disqualification is not warranted.
16
17 CONCLUSION
18 Although this Court finds that the OAG has failed to raise the issue of Judge Terlaje's 19 disqualification timely and therefore has waived any right to advance it now, even if it were raised 20 at the earliest practicable time, no disqualifying facts exist to support Judge Terlaje's 21 disqualification from this matter. This Court finds that Judge Terlaje is not disqualified under 7 22
23 GCA § 6105(a), (b)(l) or (4) or Canon 3 of the Model Code from presiding over this case on the
24 grounds that he has an bias or prejudice in favor of the Governor who appointed him, nor is he 25 disqualified on the grounds that his financial accounts with BOG demonstrate any bias or 26 prejudice in favor of the Governor.
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Leon Guerrero v. Moylan, Civil Case No. CV0I90-25 Decision and Order Re. Defendant's Statement of Objection
For the reasons stated herein, AG Moylan's Statement of Objection and request to 2 disqualify Judge Terlaje is REJECTED and is DENIED. This case shall be returned to Judge 3 Terlaje for further disposition.
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SO ORDERED this 23rd day of June, 2025.
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6 In_ ,
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8 MARIAT. CENZON
Judge, Superior Court of Guam 9
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