People v. Aguon

Opinion

FI LED

8L5g:2;{ CLERK OF 0?,COURT

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3 SUFERIDR SUPERIOR CGURT

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44 5 6 IN THE THESUPERIOR

SUPERIOR COURT

COURT OF

OF GUAM

7 PEOPLE OF GUAM, )) CRIMINAL CRIMINAL CASE NO.

NO. CF0303-22

CF0303-22

))

8 ))

vs. ))

99 ) DECISION AND

AND ORDER DENYING

DENYING

10 ROY QUINATA JUSTIN ROY QUINATA AGUON, AGUON, )) STATEMENT OF THE OAG'S STATEMENT OF DOB: DOB:05/08/1994 0510811994 ) OBJECTION OBJECTION 77 GCA

GCA §§6107

6107

11 11 AND AND MOTION TO DISQUALIFY

DISOUALIFY

)

12 12 Defendant. )

)

13 13 INTRODUCTION

14 matter is

This matter is before

before the

the Honorable

HonorableMaria

Maria T.

T. Cenzon upon

uponthe

the Office

Office of the

the Attorney

15

16 16 General's (the "Office General's (the the Attorney ofthe

"Office of Attorney General"

General" or the "OAG")

or the "OAG") Statement of Objection Statement of Objection 77 GCA GCA §§

\ 17 17 6107 andMotion 6107 and MotiontotoDisqualify Disqualify(the

(the"Objection").

"Objection"). The

The OAG

OAG objects

objects to

to the

the Honorable Alberto E.

18 18 Tolentino's (hereinafter (hereinafter "Judge

"Judge T01entino")

Tolentino") competency

competency to preside

preside over

over the

the above-captioned

above-captioned

19 19 matter under77GCA matter under GCA §§ 6105 6105 and requestshis

and requests hisdisqualification disqualification pursuant pursuanttoto77GCA

GCA §§ 6107.

6107.

20

21 Having Having considered

considered the Objection

Objection and Answer of

and Answer ofJudge

Judge Tolentino,

Tolentino, as

as well

well as

as the applicable

22 statutes andcase statutes and law and caselaw andthe

therelevant

relevantportions

portionsof

of the

the record,

record, this

this Court

Court issues

issues the

the following

following

23 23 Decision Decision and OrderDENYING and Order DENYING the

the Office

Officeofofthe

theAttorney

AttorneyGeneral's

General'srequest

requestto

to disqualify

disqualify Judge

Judge

24 Tolentino and Tolentino and reassign this case.

case.

25 // II 26

27 II //

28 II/ /

People v. Aguon,

Aguon, Criminal Case

Case No. CF0303-22

CF0303-22

Decision Decision and Order Denying and Order Denying the

theOAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 and Motion

6107 and Motion to

to Disqualify

Disqualify

Page 1 of20

of20

1 PROCEDURAL AND FACTUAL FACTUAL BACKGROUND

2 A. The Brief Brief Procedural

Procedural History

History of

of this

this Case

Case and

and Objection

Objection to

to Judge

Judge Tolentino's

Tolentino's

3 Assignment

4 On On May

May 6,

6, 2022,

2022, aa grand

grand jury returned

returned an indictment in in this matter, charging Defendant 5 I . .. | Justln RoyQuinata Justin Roy QulnataAguon Aguon("Defendant

("DefendantAguon")

Aguon")of

ofTheft

Theftby

by Receiving

Recelvlng aa Motor

Motor Vehicle

Vehlcle (As

(As a

6 nd 2nd Degree Degree Felony). January 30, Felony). On January 30, 2024, 2024, Judge Tolentino was assigned Judge Tolentino assigned to this this matter.

matter. On

7 8 February 8, 2024, February 8, 2024, Defendant DefendantAguon

Aguon pleaded

pleaded not

not guilty

guilty to the charged

charged offense and waived his 8

9 9 right right to speedy trial. On On August

August 23, 2024,

2024,the

theOAG

OAG filed

filed its

its Objection.

Objection.On

OnAugust

August29,

29, 2024,

2024, Judge

10 Tolentino tiled Tolentino filed his his Answer

Answerto

to Statement of Objection.

Statement of Objection. Ans.

Ans. To

ToStmt.

Stmt. ofObj section (Aug. 29, 2024)

of Objection 2024)

111 (the "Answer").

"Answer").On

OnAugust

August30,

30,2024,

2024,this

thisCourt

Courtwas

wasdesignated

designatedas

as the

the Recusal

Recusal Judge

Judge to rule on

12 12 the Objection. Ntc. of ofAssignment

Assignment of

ofRecusal

Recusal Judge

Judge (Aug.

(Aug. 30,

30, 2024).

2024). On

OnAugust

August30,

30, 2024,

2024, this

13 13 14 14 Court issued its CR1.1 CRI.1 Form

Form 33 taking the matter under advisement on under advisement on the

the briefs.

briefs. CRI.1

CR1.1 Form 3

15 15 Ntc. of ofHrg.

Hrg. or

orSubmission

Submission on

on Briefs

Briefs (Aug.

(Aug.30,

30,2024).

2024). Defendant

Defendant Aguon

Aguon has

has not joined in

in the

16 16 People's People's Objection Objectionnor

nor otherwise

otherwise sought

sought to disqualify Judge Tolentino.

Judge Tolentino.

17 17 1. The

TheBasis

Basis of OAG's

TAG's Objection.

Objection.

18 18 The gravamen of the OAG's gravamen of OAG's Objection Objection isisthat

that Judge

Judge Tolentino

Tolentino is

is disqualified

disqualified from

19 19

20 20 presiding over all cases involving the the Office

Officeofofthe

theAttorney

AttorneyGeneral

Generalbased

basedupon

upon the

the mandate of

mandate of

21 7 GCA §§6105(a)

7 GCA 6105(a) requiring requiring the judge to

the judge to "disqualify

"disqualify himself

himself... inany

...in in which proceeding in

any proceeding which his his ...

22 might reasonably be questioned ...."

impartiality might .... "Objection Objection at p. 22 (citing at p. (citing77GCA

GCA §§6105(a)). The

The

23 OAG OAG alleges alleges that

that "knowing

"knowing all

allthe

thefacts

factsand

andunderstanding

understanding the

the context

context involving

involving Judge

Judge

24 25 Tolentino's history Tolentino's history of ofdisqualifying

disqualifying himself

himself where the

the AG

AG was

was involved,

involved, ititisisclear

clearthat

that Judge

Judge

25

26 26 Tolentino is is a disqualified judge

judge in

in any

any case

casewhere

wherethe

theAG

AGMoylan

Moylan is

is involved."

involved." Objection

Objection at

at p.

27 27 5. Other than Judge Judge Tolentino's

Tolentino's past

past sue

sua sponge

sponte refusals basedupon recusals based uponAG

AG Moylan's

Moylan's biological

28 28 relationship to relationship to his his stepchildren

stepchildren- -the lastofofwhich thelast whichwas

wasnearly

nearlytwo

twoyears

yearsago

ago- - the

the OAG

OAG alleges

People People v. Aguon, Criminal Criminal Case

Case No. CF0303-22

Decision and Decision and Order Denying the Order Denying the OAG's

OAG's Statement of Objection Statement of § 6107 GCA §

Objection 77 GCA 6107 and andMotion

Motion to

to Disqualify

Disqualify

Page 20 Page 2 of20 1 no specific facts, asserted by facts, asserted by someone someone with personal knowledge knowledge of

of such

such facts, which purportedly 2 invoke invoke the the provisions

provisions of

of Section 6105. 1 Instead, the Section 6105.1 the Objection only iterates the finding in People 3 v. v. Tatting/ong, Taitingfong, et al., al., Superior Court Criminal Case No. CF0024-24 CF0024-24 (June

(June 4,

4, 2024)

2024) (Iriarte,

(Iriarte, J.)

4

5 that Judge Tolentino was disqualified disqualified in

in that

that case based

based upon factors considered considered in

in that

that particular

6 case. Moreover, the "Verification" executed by Chief Chief Prosecutor

Prosecutor Rudolph purporting to be "true

7 and correct" also disavows the accuracy of "factual matters matters averred

averred on information and belief."

8 Objection at Objection at p. 8.

9 Nevertheless, the

die Objection identities

identifies two

two purportedly

purportedly disqualifying disqualifying factors,

factors, the first of

of

10 10

11 1 which places the blame squarely upon the Superior Court of Guam and the the second

second upon a

12 12 "familial "familial relationship"

relationship" between

between Judge Tolentino and Attor olentino and Attorney Generall Dougla ney Gener Douglass Moyla Moylan

13 13 (hereinafter "Attorney General Moylan," "Mr. Moylan" or "Moylan") which purportedly requires 14 Judge Tolentino to recuse himself, specifically:

15 15 (1) The Superior

Superior Court should

should have prevented

prevented Judge

Judge Tolentino

Tolentino from

from

16 16 handling

ndling matters

tter s involving

involving the

the Attorney

Attor ney General

Gener a l of

of Guam,

Gua m, ass he ha

had

17 previously disqualified previously disqualified himself himself suesua sponge,

sponte, from matters involving from all matters

Douglas B. Moylan Douglas B. Moylan pursuant pursuant to

to 77 GCA

GCA §§ 6105

6105 and

and6106,

6106; and

and

18 (2) The familial

familial relationship between Judge TTolentino relationship between olentino and and Attorney

Attorney

19 19 General Moylan which constituted the grounds for Judge Tolentino's sue sua 20 sponge sponte disqualifications should should have been

been disclosed,

disclosed, and

and the

the basis for Judge

Tolentino's Tolentino's disqualifications disqualifications pursuant to §§ 6105 pursuant to 6105 have

have not changed.

not changed.

21 Objection Objection at p. 2 (emphasis in original). Citing to the Guam Supreme Court case of San Agustin 22

23 v.

v. Superior Court of Guam, 2 the OAG posits, ofGuam,2 posits, "the Superior Superior Court

Court must align

align its

its process

process for

24

25 11 The Court finds it significant that that the

the allegations

allegations purportedly

purportedlygiving

giving rise

rise to

to a conflict are only advanced by by Actin Acting

26 ChiefProsecutor Chief Prosecutor Rudolph Rudolph and that

thatno noDeclaration

Declarationmade

madeunder

underpenalty

penaltyof ofperjury

perjuryby byAttorney

AttorneyGeneral

GeneralMoylan

Moylan-- who

is the only individual other than thanJudge

JudgeTolentino

Tolentino who

whowould

would have

have firsthand

firsthandknowledge

knowledgeof of any

anyongoing

ongoing "close

"close personal

persona

27 relationship" between between himself

himselfand

and Judge Tolentino - was Judge Tolentino was submitted submitted to provide a factual basis for factual basis for the

the disqualification

disqualification.

2 2 2024 Guam 2024 Guam2. 2.Curiously, Curiously, the

the first

f`Lrst"factor"

"factor"has

hasless to do

lessto do with Judge Tolentino's actions Judge Tolentino's actionsororpLu'poIted purported inaction

inaction and

an

28 seems to be seems to be more more of

of an action toto compel

compel thethe Superior

Superior Court to "do"

Courtto an act - that "do" an that is, is, omit

omit Judge

Judge Tolentino fromfrom the th

case assignment assignmentprocedures

proceduresof ofthe

theadministrative

administrativerule

rulebased

basedupon

uponaadisqualifying

disqualifyingfactor.

factor. This

This would

would seem to be more

People People v.

v. Aguon, Criminal

Criminal Case

Case No.

No. CF0303-22

CF0303-22

Decision Decision and Order Denying and Order Denying the

theOAG'

OAG'ss Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 3 of 20

of20

1 assigning judges to assigning judges to the therecord

recordof

of aaprospective

prospectivejudge's

judge'shistory

historyof

of disqualification."

disqualification." Objection Objection at

2 p.7. In short, the OAG short, the OAG argues that, in argues that, in assigning assigning cases

casesto

tojudicial

judicial officers,

officers, the Superior Court Court of

of

3 Guam should disregard multiple should disregard multiple provisions of ofthe

the Guam

Guam Supreme

Supreme Court's

Court's administrative

administrative rule,

4 including the "case assignment"

assignment" rule and

and the rule governing the disqualification of of aa judicial

judicial

5

6 officer3 merely officers' merely because because Judge

Judge Tolentino had routinely Tolentino had routinely recused himself in reused himself in cases cases involving Mr.

7 Moylan Moylan through through October

October 2022 and before

2022 and before the

the latter

latter assumed his elected assumed his elected office office as

as Attorney

8 General in 2023.

2023. By

Byfurther

further implication,

implication,the

the OAG

OAGasks

asksthis

thisCourt

Courtto

tofind

findthat

that the

the Superior

Superior Court

9 should have ignored should have ignored the thesubstantive

substantiveand

andprocedural

procedural disqualificationprovisions disqualification provisionsofof77GCA GCA§§§6105

§ 6105

10

111 and 6106 6106 and

andfurther

furtheromit

omitJudge

JudgeTolentino

Tolentinofrom

from the

the random

randomassignment

assignmentof

ofcases

caseswhich

whichinvolve

involve

12 12 the OAG OAG (including

(including criminal

criminal cases)

cases) because thejudge

because the judgepreviously previously recused

reused himself from presiding

13 over over cases cases in

in which

which Mr. Moylan

Moylanrepresented

represented aa defendant

defendant on the

the grounds

groundsthat

thatMr.

Mr.Moylan

Moylan "is

"is the

14 father of [his]

[his] stepchildren."

stepchildren." Objection

Objectionat

atpg

p. 2.

15 15 Judge Tolentin0's

2. Judge Tolentino's Answer.

16 16

17 Judge Tolentino's Judge Tolentino's Answer

Answer to

to the

the Objection

Objection isislengthy

lengthyand

and detailed,

detailed, and

and the

the Court

Court finds

18 18 the the following following responses,

responses, made

made under penalty of perjury, under penalty perjury, particularly relevant to particularly relevant to this Court's Court's

19 recusal determination: recusal determination:

20 ~ 6. 11 6. That

That at

at Mr. Moylan's

Moylan's request,

request, aa meeting

meeting between

between him

him and

and the

the

21 undersigned, the undersigned's undersigned, the undersigned'schamber chamberstaff,

staff, the

the Administrator

Administrator of

of the

the

Courts, and Mr. Courts, and Mr. Moylan's Moylan's transition

transition chairperson,

chairperson, Mr. Mr. Wilfred Wilfred Aflague,

22 occurred in December 2022;

2022,

23 ~ 7. That 117. That at

atthis

thismeeting,

meeting, Mr. Moylan

Moylanassured

assured me

me and

and the

the other members in

24 attendance thathe attendance that heperceived perceivednonoconflict

conflict in his election as as the

the Attorney

Attorney

General and the

theprosecution

prosecution of

of criminal cases

cases before

before the

the undersigned. It was

25 agreed that the

the circumstances underlying my circumstances underlying my recusal recusal in matters that Mr.

matters that

26

27 27 appropriate under aa writ proceeding, proceeding, ironically

ironically akin

akin to

to the writ

writ proceeding

proceeding described

described in

in detail

detail by the Guam

Guam Supreme

Court San Agustin, the OAG's Court in San OAG'sprincipal case. See, principal case. ,r,r See, San Agustin at W 35-4135-41.

3 28 28 3 Administrative Rule No.

Administrative Rule 24-001 (March 6, No. 24-001 6, 2024).

2024). Section

Section III

III ofofAR24-001

AR24-001establishes

establishes the

the procedure

procedure for

for the

th

assignment of assignment of cases.

cases. Section IV.A.addresses SectionIV.A. assignment of the assignment

addresses the ofcases cases upon

upon the

the disqualification

disqualification of

of aa judge

judge and

and the

th

assignment of of the recusaljudge.

judge.

People v. Aguon, Criminal Case No. People No. CF0303-22 Decision Decision and Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 4 of

of20

1 Moylan Moylan was

was aa lawyer the as the

term as

myterm

during my

thatduring

wit:that to Mt:

existed, to

longerexisted,

no longer

lawyer no

Magistrate judge I had routinely recused had routinely from all myselffrom

reused myself matters where Mr.

allmatters

2 Moylan Moylan was

was the ofaaparty attorney of

the attorney beforeme party before meononthe basis that thebasis he was the that he

3 father father of my

my minor

minor step-children

step-children and

and that

that the

the minor

minor step-children

step-children were

members members of and resided

resided in the maintainedby household maintained

the household byme andmy me and my wife

wife

4 and that thatas

asof date, both step-children have now reached majority and of even date, and adulthood and have been and have residing at their own been residing residences in own residences Guam and in in Guam

5 Mainland;

the U.S. Mainland,

6 6 1] 18.8. That

That Mr. Moylan never made Moylan never an appearance made an as a lawyer appearance as case;

lawyer in this case,

7 7

8 1] 9. That 1 9. Mr. Moylan neitherMr.

That neither the Office of Moylan nor the the Attorney ofthe General had Attorney General had ever ever challenged objected to me or obi

challenged or presiding over me presiding thiscase overthis until the case until instant

the instant

9 Statement Statement of Objection and of Objection Motionto andMotion Disqualify filed to Disqualify herein;

filed herein,

10 'll has not explained why or 12. That additionally movant has that fact that

the fact

or how the

112.

11 Mr. Moylan thebiological Moylan isisthe fatherofof biologicalfather theundersigned's the stepchildren undersigned'sstepchildren requires disqualification ofthe disqualification of undersigned;

the undersigned,

12 12 11 14.That 1 14. Thatmy mywife

wife Doris L.G. Tolentino Attorney General and Attorney

Tolentino and Moylan General Moylan

13 13 were divorced on June 13, 1997, and that there there were

were two minor children

children at

divorced on June 13, 1997, 14 the the time of

of the

the dissolution marriage, to of marriage,

dissolution of wit: Brandon to wit: (born 1990)

Brandon (born and 1990) and

Angela (born Angela (born 1992);

15 15 1115. That my 115. That my wife andand I have have been

been together since 2001 together since and that 2001 and we were

that we

16 mam'ed civilly in married civilly 2005 and in 2005 eventually in and eventually the Roman in the Catholic Church Roman Catholic in Church in

17 December 2023, 2023;

18 'll 1 17. my wife since my

17. That since and II have wife and been together have been have never together I have observed never observed

Mr. Moylan

Moylanand my wife

and my involvedininany wifeinvolved sensein anysense inco-parenting the children co-parenting the

19 of of their

their marriage

marriage asas the children have the children been raised have been and provided with raised and with 20 protection andand care ensure their healthy care to ensure development into healthy development adulthood, into adulthood,

primarily primarily bybymymywife

wifeand

andme,

me,and

andthat

that they in fact

are in

they are adults able to conduct fact adults

21 and make make their decisionsin owndecisions

theirown inlife;

life,

22 22 1 18. 11 18.That the foregoing upon the

based upon

That based averments, the foregoing averments, Attorney that Attorney

the fact that

23 General Moylan is General Moylan is the biologicalfather the biological theundersigned's fatherofofthe step-children undersigned's step-children provides provides no

no basis for disqualification basis for disqualification under under 77 GCA

GCA §§ 6105(b)

6105(b) ororthat

that the

the

24 24 undersigned's "impartiality undersigned's reasonably be "impartiality might reasonably questioned" as be questioned" required as required

25 under subsection (a);, under

26 1] 19. That 119. That "[u]nder subsection 6105 6105 (a), matters is (a), what matters is not "actual bias"

not "actual bias"

appearance of

but "the appearance of bias." Van Dox bias." Van Dox at 1 32 at 1] Dizon v.

32 ((citing Dizon Ct.

Super. Cr.

v. Super.

27 27 (People), 1998 Guam 'll 10n.n.3).

1998guam3110 3).The appearanceof The appearance judged from is judged

bias is of bias

28 the the standard

standard ofof a "reasonable person" who "reasonable person" knows all the who knows the facts, and facts, and

understands understands the "contexts of the"contexts parties, and of the jurisdictions, parties, controversies and controversies

People v. Aguon,

Aguon, Criminal Case

Case No. CF0303-22

CF0303-22

Decision Decision and OrderDenying and Order Denyingthe

theOAG's

OAG's Statement

Statementof

of Objection

Objection 77GCA

GCA §6107

§ 6107 and Motion to

and Motion to Disqualify

Disqualify

Page 5 of

of20

I

1 involved," including including such

such "realities of

ofthe

the Guam

Guam judicial

judicial system"

system" as the

as the

relatively small number of lawyers in the Guam bar and "the relatively small number oflawyers in the Guam bar and "the naturenature of Guam 2 (citationomitted)

families." Id. (citation omitted).

3 ,r 3030....The 11 .... recusal judge recusal judge [in People v. Taitingfong,] did v. Taitingfong,] carefully not carefully

did not

4 examine or consider the wife and Mr. Moylan my wife

thatmy

realities that

the realities have been Moylan have

divorced for close to twenty-seven close to years and twenty-seven years that the children and that their children of their

5 marriage marriage are living on adultsliving

are adults their own on their andwell

own and well over the majority the age of majority

6 6 and that that no reasonable person who knows no reasonable all the knows all factsand the facts understands the and understands

contexts of the jurisdiction, parties and controversies involved ofthe in the involved in Guam

the Guam

7 7 judicial system judicial system would conclude conclude that

that there

there exists

exists an appearance of bias an appearance bias 8 requiring my disqualification disqualification in this matter. ....

in this

99 Answer ,r,r 6-

Answeratat1116 - 9,9, 12, 12, 14,

14, 15,

15, 17

17 .-

- 19, 30.

30.

10 DISCUSSION AND AND ANALYSIS

ANALYSIS

11 11 A. The The Law

Law Governing

Governing Judicial Disqualification and In Forth in Guam Statute and Set Forth

Disqualification Is Set In 12 12 the Model Code Code of Judicial Conduct.

13 13 1. Guam

GuamStatutory

Statutory Mandates.

Mandates.

14 Judicial disqualifications Judicial disqualifications are are governed

governed by

by the

the substantive mies of

substantive rules of 7

7 GCA

GCA §§6105

6105 and

and the

the

15 15 6 procedural rulesof procedural rules of 77 GCA GCA §§

§§6106

6106 and

and 6107. The relevant portion of 6107. The ofthe the disqualification

disqualification statute

statute

116 17 17 is Section Section 6105(b)(5), 6105(b)(5), which that:

requires that:

which requires

18 (b)

(b) AAJudge

Judge shall

shall also

also disqualify

disqualify himself in the herself in

himself or herself following the following

circumstances, butif,if, following circumstances, but disclosure to following complete disclosure the parties in the

to all parties

19 proceeding of

ofthe reasons for his or her disqualification, all parties agree to the reasons

20 having having the Judge continue to Judge continue to sit proceedings, he sit in the proceedings, she need he or she not

need not

disqualify himself or herself:

herself:

21 (5) Where

Where hehe or sheshe or his his or

or her

her spouse, person within the third or a person

spouse, or third 22 22 degree degree of relationship

relationship to either

either of

of them,

them, or the

the spouse such

spouse of such

23 person:

person:

(A) (A)isisaaparty

party to

to the

the proceeding,

proceeding, or

or an officer, director, an officer, trustee or trustee

director, or

24 24 party;

ofaa party; of (B) (B)isis acting

acting as

as a lawyer

lawyer in .... 4 in the proceeding ....4

25

26 26

27 27

28 28

4 4 7 GCA § 6l05(b)(5) (emphasis added).

7 GCA § 6105(b)(5) (emphasis added).

People v. Aguon, Criminal Case v. Aguon, Case No. CF0303-22 CF0303-22

Decision and Decision Order Denying and Order theOAG's Denying the OAG's Statement of Objection Statement of Objection 7

7 GCA

GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 6 of

of20

1 Correspondingly, Section 6106 6106 compels a judge to disclose disclose aa disqualification disqualification enumerated under 2 6105: 5 6l05:5 3 Whenever Whenever a Justice or Judge Justice or Judge shall

shall have knowledge

knowledge of any factfact or or facts

facts

4 which, under the provisions of 6105 of of this Chapter, disqualify him or her 5 to sit or act as such in any action or proceeding pending before him or her, it shall be his or

or her

her duty

duty to

to declare

declare the same

same in

in open

open court

court and

and cause

cause a

6 memorandum thereof memorandum thereof to be entered in the minutes. It shall be the duty of of the

clerk to transmit forthwith a copy ofof such memorandum to each party or his 7 or her attorney who shall have appeared in such action or proceeding, except such parties as are presented in person or by attorney when the declaration 8 is made.

9 If a judge fails

fails to

to disclose

disclose aa disqualifying disqualifying factor

factor under

under Section

Section 6105,

6105, then,

then, pursuant

pursuant to

10

11 11 Section 6107, any party to the action who has appeared in the case may raise raise the

the objection

objection to

12 12 competency. 6InInthis competency thisregard, regard,Section

Section6107

6107provides,

provides, in

in relevant

relevant part,

part, as follows:

follows:

13 13 Whenever a Justice or Judge who shall be disqualified under the provisions 14 of this Chapter to sit or act as such such inin any

any action

action or

or proceeding

proceeding pending

pending

before him or her neglects or fails to declare declare his or her disqualification in 15 15 the manner the manner provided

provided by thisthis Chapter, Chapter, any partyparty to such such action

action oror

proceeding who has appeared therein may present present to the court and file with 16 the clerk a written statement objecting to the hearing of of such matter or any 17 trial of any issue of of fact

fact or

or law

law in

in such

such action

action or

or proceeding

proceeding before

before such

Justice or Judge, and setting forth the fact or facts constituting the ground 18 of the disqualification disqualification of such Justice or Judge.Judge. Copies of such such written

written

statement shall forthwith forthwith be served by the presenting party on each party, 19 19 or his or her attorney, who has appeared in the action or proceeding and on 20 the Justice or Judge alleged in such statement to be disqualified.

21 Within ten (10)

10) days after the service of of such statement as above provided, or ten (l0)

10) days

days after

after the filing of

of any statement,

statement, whichever is later in time, 22 the Justice or Judge alleged therein therein to

to be

be disqualified

disqualified may

may file

tile with the clerk

23 his or her consent in writing that the action or proceeding continue without him or her, or may

may file with the clerk his or her written answer admitting or 24 denying denying any

any or

or all of

of the allegations contained contained in such statement and setting forth any additional fact or facts material or relevant to the question of his 25 or her disqualification.

disqualification. TheThe clerk clerk shall

shall forthwith transmit aa copy forthwith transmit copy of the 26 Justice's or or Judge's

Judge's consent

consent or

or answer

answer toto each

each party or

or his or

or her

her attorney

who shall have appeared in such action or proceeding. Every such statement 27

28 55 77 GCA GCA §§ 6106

6106 ((emphasis added).

added).

66 77 GCA GCA §§ 6107

6107 ((emphasis added).

added).

v. Aguon,

People v. Aguon, Criminal Case No. CF0303-22 Decision Decision and Order Denying and Order Denying the

the OAG's

OAG's Statement

Statement of

ofObjection

Objection 77 GCA

GCA §§ 6107

6107 and

and Motion

Motion to

to Disqualify

Disqualify

Page 77 of20

of20

1 and and every

every answer shall be verified answer shall verified in prescribed for the manner prescribed

the manner

in the the verification verification of

ofpleadings.

pleadings. The statement

statement of partyobjecting ofaparty to the objectingto Justice the Justiee

2 or Judge

Judge onon the

the ground of his or

ofhis herdisqualyication or her shallbe disqualificationshall presented bepresented

3 at the earliest earliest practicable opportunity after his practicable opportunity or her his or appearance and her appearance and

faets constituting the ground of discovery of thefacts of the Justice's or Judge's 4 disqualification, and in any disqualyication, commencement of the the commencement

before the

event before

any event the hearing hearing ofofany

any issueoffset

offactin

inthe

theaction

actionor before such Justice proceeding before orproceeding

5 or Judge.

Judge.

6 No Justice or Judge who shall his or shall deny his her qualification or her shall hear qualification shall or pass hear or

7 7 disqualification, but in every case the own disqualification,

her own or her

his or

of his

question of

upon the question question Justice's or question of the Justice's Judge's disqualification or Judge's shall be heard and disqualification shall and 8 determined determined by some other by some Presiding Judge, other Judge. The Presiding or next senior Judge, Judge, or

9 if it is the Presiding Judge's disqualification that is being requested, shall Judge's disqualification

assignment within five (5)

make such assignment (5) days after receiving from the clerk days after

10 10 the notice that the statement of of disqualification has been filed. In the case 11 11 disqualification, the

of a Justice's disqualification, matter shall the matter be heard shall be Supreme heard by the Supreme

Court constituted without the questioned Justice.

12 If such Judge admits his or or her disqualification, or files his or her written her disqualification,

13 13 or fails consent another Judge, or consent that the action or proceeding be tried before another 14 too file hin the file the aanswer within (10) da he ten (10) llowed, or days aallowed, shall be it sha

or if it

after the

determined after hearing that the hearing she is that he or she disqualified, the action or is disqualified,

15 15 shall be heard and determined proceeding shall determined by another Judge of by another of the Superior Court who is is not disqualified. Such other Judge shall be assigned in the not disqualified.

16 same manner as the Judge who was disqualified was was disqualified assigned to hear the was assigned

17 17 case initially.

18 2.

2. Model Code

Code of Judicial Conduct: Canon 3 Canon 3

19 of the Model Code of

Canon 3 of Conduct7 (the "Model of Judicial Conducts "ModelCode") mandates that 'Tal Code")mandates "[a]

20 shall perform

judge Shall the duties perform the of judicial duties of office impartially judicial office and diligently,"

impartially and and 3E.(l)(d)(i) and diligently," and

21 22 (ii) of the (ii) of the Model Model Code's

Code's disqualification

disqualification factors mirror those factors mirror those of77 GCA GCA §§6105(b)(5)(A) and (B):

22

23 E. Disqualification.

24 24 proceeding in which the judge's himself or herself in a proceeding judge shall disqualify himself (1) A judge judge's but not limited to instances impartiality might reasonably be questioned, including but 25

26 26 77 The The ABA's ABA's Canon

Canon of

ofJudicial

Judicial Ethics

Ethics shall conduct of govern the conduct

shall apply to and govern of Guam.

the Superior Court of

ofthe

Judges of ofludges

27 27 77 GCA § 6103.

GCA § 6103. TheThe Model Model Code

Code of

ofJudicial

Judicial Conduct

Conduct applicable

applicable in

inGuam

Guam was

was adopted

adopted by

by the

the House

House of

of Delegates

Delegates oof

the American American Bar

Bar Association

Association onon August

August7,7, 1990,

1990, and

and amended

amended on August 6, 1997, 1997, August 10, 1999, and August 10, 1999, August 12,

28 2003. It is hereinafter referred to as asthe

the"Model

"Model Code."

Code."

People v. Aguon, Criminal Case No. CF0303-22 Decision and Order Decision and Order Denying Denying the

the OAG's

OAG's Statement

Statement of

of Objection

Objection 77 GCA

GCA §§ 6107

6107 and

and Motion

Motion to

to Disqualify

Disqualify

Page 88 of20

of20

1 where::

where

(d) the judge or the judge's spouse, or a person within the third judge's spouse, third degree of of

2 relationship* to either of them, or the spouse of relationship* of such a person:

3 (i) is a party party to

to the

the proceeding, of proceeding, or an officer, director or trustee of aa party

party;n

4 (ii) is acting as as aa lawyer

lawyer in

in the

the proceeding;

proceeding, ....

5 B. The The OAG has waived

waived its

its right to object to Judge Judge Tolentino's qualification to preside 6 over cases involving the Office of the Attorney Attorney General.

7 highlighted, above, As highlighted, above, Section Section 6107

6107 requires

requires that

that the statement

statement of

of a party objecting to the 8 Judge on the Judge the gr ound of ground ofhis

his disqua lifica tion shallll be pr disqualification esented "at presented "Q the earliest earliest practicable

practicable

9 or her appearance and discovery of the facts constituting the ground Q opportunity after his Q of the 10

11 11 or Judge's disqualification, and in any Justice's Q any event event before the

the commencement of the hearing of commencement of of

12 12 any issue any of fact issue of fact in in the

the action

action or

or proceeding

proceeding before

before such

such Justice or Judge."

Justice or Judge." 77 GCA GCA §§ 6107

6107

13 emphasis added). (emphasis added). The The Guam Supreme Court

Court in Van

Van Dox has confirmed

Dox has confirmed that

that statements

statements of

of

14 14 presented at

objection shall "be presented at the the earliest

earliest practicable opportunity after discovery of of the facts

15

Van Dox v.u Super

constituting the ground for disqualification." Van Super Cr. Guam77, (Alcorn), 2008 Guam

Ct. (Alcorn), 'H 44.

16

17 17 Thus, the controlling Thus, controlling law in in Guam

Guam "[w]ith

"[w]ith respect

respect to

to the

thestatutory

statutory provision

provision requiring

requiring that

that

18 disqualification be urged at the 'earliest disqualification opportunity,' the intention is 'clear 'earliest practicable opportllnity,' 'clear that failure 19 19 . . . . . . . . .

comply wlth to comply with the the provlslon

provision constitutes Id, constitutes a waiver."' Id Caminetti Vv. Pay.

(quoting Camznettz

1145 (quoting Pac. Muni Mut. Ins.

20 Co. of Cal., Co. of 139 P.2d Cal., 139 P.2d 930,

930, 933

933 (Cal.

(Cal. 1943)(emphasis

1943)(emphasis added)).

added)). A

A finding

finding of

of timeliness

timeliness should be

21 22 justice. Id.

construed liberally in the interest of justice. , Id 1[45 (citing Eagle Maint.

Mains. &

& Supply

Supply Co.

Co. v.v Super

22

23 Ct., 16 Cal. Rptr.

Ct., Rptr. 745, 745, 747

747 (Dist.

(Dist. Ct.

Ct.App.

App.1961)).

l961)). A

Atimely

timely statement

statement of

of objection

objection is made "prior

24 24 the challenged judge in the matter." Id., to any hearing before the 1]46 (citing Hollingsworth, 236 Cal.

Cal.

25 Rptr. at 195-96). Rptr. 195-96). Van Dex also cites to People Van Dox People 11 v. Panah, court held aa disqualification Pariah, where the court disqualification 26 untimely because facts of the case because the facts case were known known in

in early

early September,

September, but the moving party party

27

28

People People v.

v. Aguon, Criminal

Criminal Case

Case No.

No. CF0303-22

CF0303-22

Decision and Decision Order Denying and Order Denying the

theOAG's

OAG's Statement of Objection Statement of Objection 77 GCA 6107 and GCA §§ 6107 Motion to and Motion to Disqualify

Disqualify

Page 9 of

of20

1 waited until until the

the eve

eve of

of trial

trial in November to move for ,r 46 (citing People v.

disqualification. Id 'll

for disqualification.

2 Panah, 107 Pariah, 790, 824).

107 P.3d 790,

3 More recently,

recently, in People v. Win, Wia, 2020 17, the

2020 Guam 17, Supreme Court applied the the Guam Supreme

4 "silence-by-waiver" rule rule adopted

adopted in San

San Union,

Union, Inc.

Inc. u

v. Arnold, that 10, and held that

Arnold, 2017 Guam 10,

5

6 6 "[r]ather "[r]ather than than interpreting

interpreting "agree" to

to mean

mean that

that the parties must

the parties expressly agree must expressly to waive the agree to

7 7 judge's disqualification, we we held context of the context

that remaining silent constitutes waiver, at least in the held that of 8 7 7 GCA GCA §§ 6105(a), 6105(a), "[t]o

"[t]oavoid

avoidthe

thepossibility

possibility of

ofparties

parties 'l[ying]

'l[ying]ininwait,

wait,raising

raisingthe

therecusal

recusal issue

issue

9 only after only after learning the court's learning the rulingon court'sruling onthe

themerits.'

merits.'""Id

Id (quoting

(quoting Phillis

Phillipsvv. Amoco

Amoco Oil

Oil Co.,

Co., 799

799

10

11 11 F.2d 1464, 1464, 1472

1472(11th

(nth Cir. 1986),cert. denied, denied, 481 1016 (1987)).

481 U.S. 1016 Guam allows for the Thus, Guam

(1987)) Thus,

12 12 waiver waiver of 6105(b) conflicts Section 6105(b) ofSection conflicts by by the

the silence

silence of

ofthe party who sits on his the party his right to object.

right to object. Id

Id

13 13 at 'H 29.8 14 In In his Answer, Judge Tolentino raised Judge Tolentino raised the the issue

issueof

of timeliness,

timeliness, stating "[t]hat neither Mr.

stating "[t]hat

15 15 Moylan Moylan nor nor the Office

Office of

ofthe

the Attorney

AttorneyGeneral

General had

had ever or objected challenged or

ever challenged to me objected to presiding

me presiding

16 16

17 17 over until the this case until

over this the statement statementof

ofobjection

objectionand motiontotodisqualify andmotion ... " Answer disqualify..." Answerat ,r 9. That is at 1]9.

18 18 to say, say, the OAG OAG and

and Mr.

Mr. Moylan

Moylanknew

knewsince

sincetheir meetingininDecember theirmeeting 2022, that December2022, Judge that Judge

19 19 Tolentino would be assigned as the Attorney preside over criminal cases which Mr. Moylan, as assigned to preside

20 General General of of Guam,

Guam, would bring in the name name of the

the People

People of

ofGuam.

Guam. Despite its urging Despite its that the urging that

21 Court apply the reasonable reasonable person

personstandard

standardwho

whohas "knowledgeof

has"knowledge allthe

ofall facts," itit is significant thefacts,"

22 22

23 that the the OAG does Judge Tolentino's does not challenge Judge description of Tolentino's description meeting held of aa meeting between them held between

24 24 and their their staff in December, 2022, the precise question discussed the

Ian discussed

Mr. Moylan

judge and Mr.

thejudge

2022, where the

25

26 26

27 s8 See also, Clarette Charette v. Clarette, 60 A.3d v. Charette, A.3d 1264, 1264, 1270-1271 (Maine 2013)Gudge 1270-1271 (Maine had hired a party's brother-in-law to 2013)(judge had

do construction construction work work for

for him

him and

and his daughter was

was close the same party's with the

close friends with opposing party should daughter, opposing

party's daughter,

28 28 have raised an objection objection based

based upon the the appearance appearanceofof impropriety before before the

the court issued a judgment unfavorable to court issued

him, him; the appellate court finding that that the facts were known to ro the the party

partybecause

becausethey

theyoccurred

occurredover

overthe

thecourse

courseof

oftwentytwenty

seven years years while

while allwere

were living

living in

in the

the same

same small community).

People People v. Aguon,

Aguon, Criminal Case

Case No. CF0303-22

Decision and Decision Order Denying and Order the OAG's Denying the OAG's Statement of Objection Statement of Objection 77 GCA GCA § 6107 and

§ 6107 andMotion

Motion to

to Disqualify

Disqualify

Page 10 of20 Page 10 of20 1 of of whether whether a conflict would exist "in "in [Mr.

[Mr. Moylan's]

Moylan's]election

electionasasthe

theAttorney

AttorneyGeneral

General and

and the

the

2 prosecution of criminal prosecution of criminal cases before the cases before the undersigned" and "[i]t undersigned" and "[i]t was was determined

determined that

that the

the

3 circumstances underlying underlying my

my recusal

recusal in

inmatters

mattersthat

thatMr.

Mr.Moylan

Moylanwas

wasaalawyer

lawyerno

nolonger

longer existed."

existed. 59

4 Answer at 'W 6, 7.

5

6 Thus, it is uncontroverted Thus, that, since uncontroverted that, since 2022, 2022, Mr.

Mr. Moylan

Moylan and the OAG

and the OAG knew

knew that

that Judge

Judge

7 Tolentino is Tolentino is assigned assigned by the Superior Court of of Guam,

Guam, applying

applying the

theAdministrative

Administrative Rule, to preside 8 over over criminal criminal cases

cases which are brought

brought in

in the

the name

nameof

of the

the People

People of Guam by

by the

the OAG, through

through

9 Attorney General General Moylan. Based

Based upon the

the "silence-by-waiver"

"silence-by-waiver" rule

rule most

most recently

recently reiterated

reiterated in

10

11 11 Win, Wia, the OAG OAG is

is barred from complaining-for complaining - for the

the first

first time in sinceMr.

in nearly two years since Mr. Moylan Moylan

12 12 assumed office -- that assumed office that Judge Judge Tolentino

Tolentino is disqualified becauseof disqualified because of Mr.

Mr. Moylan's biological

biological

13 relationship to Judge Judge Tolentino's stepchildren. 9 Tolentino'sstepchi1dren.9 14 Although the Court finds that Although thatthe theOAG

OAG has

haswaived

waived any

anyright

rightto

toobject

objectto

toJudge

JudgeTolentino's

Tolentino's

15

qualifications to to preside

preside over matters

mattersin

inwhich

whichthe

theOffice

Office of

of the

the Attorney General

General and

and Attorney

16

17 Moylan represent General Moylan represent the People or or aa party,

party, because

because the

the OAG continues

continues to raise the

the issue

issue of

of

18 the "relationship"

"relationship" between Attorney General Moylan and Judge Tolentino/his 19 spouse/stepchildren in spouse/stepchildren inover overfifty criminalcases fifty (50) criminal casesassigned assigned to

to Judge

Judge Tolentino, the

the Court now

20 addresses the substance addresses the substanceof ofthe

theObjection.

Objection.

21

22 c. C. Judge Tolentino Tolentino is not

not related

related to

to Attorney

Attorney General Moylan

Moylan either

either by

by consanguinity

consanguinity

or affinity

affinity within

withinany

anydegree;

degree; therefore,

therefore, there

there isis no

no relationship

relationship to

todisclose

disclose under

23 Guam LawLaw or or the

the Model Code.

Code.

24 The threshold threshold question

question in determining

determining whether Judge Judge Tolentino is

is disqualified

disqualified under

under

25 Section 6105(b)(5)(A)

6105(b)(5)(A) or

or(B)

(B)isiswhether

whetherhe

he(or

(orhis

hisspouse)

spouse)isisrelated

related within

within three

three degrees

degrees to aa

26

27 99 See, See,this thisCourt's

Court'sDecision

Decisionand

andOrder

OrderDenying

Denying the

theOAG Statement

OAG's'sStatement ofof Objection Objection andand MotiontotoDisqualify Motion Disqualy in

in People

28 v. Ybanez, Ybanez, Superior Court of of Guam Criminal Case No.

Case No. CF0447-23 (Jun. 12, 2024), which rejects the Objection (Jun. 12, 2024), which rejects the Objection file filed therein by the OAG as defective. It is unknown why as procedurally defective. why the the OAG

OAG fails

fails to

to acknowledge

acknowledge oror discuss

discuss Ybanez,

Ybanez

which reached which reached a diametrically opposed opposed conclusion to the decisions of the courts in Aguon and Taitingfong.

Taitingfong.

People v. Aguon,

Aguon, Criminal Case

Case No.

No. CF0303-22

CF0303-22

Decision Decision and Order Denying and Order Denying the

theOAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page ll Page 11 of20 1 party to the party the proceeding proceeding or to aa lawyer lawyer to

to the

the proceeding.

proceeding. A familial

familial relationship

relationship may

may be

be

2 established by consanguinity established by consanguinity or or affinity.

affinity. If

Ifestablished

established by

by consanguinity,

consanguinity, it is

is aa relationship

relationship by

3 ofblood,

ties of blood; ififestablished established by

by affinity,

affinity,ititexists

existsbetween

betweenone

onespouse

spouse and

and the consanguinity

consanguinity of the

4 other.1° Thus, "consanguinity" other. 10 Thus, "consanguinity" measures measuresthe

therelationship

relationshipby

byblood

blood and

and "affinity"

"affinity" measures

measures the

the

5

11

6 relationshipby relationship bymarriage.

marriage.11

7 The disqualification provisions provisions of Section 6105 of Section 6105 and

and Canon

Canon33 of

of the

the Model Code

Code bar

bar a

8 judge from presiding judge presiding over matters where the matters where the judge or or his

his spouse

spouse is

is within

within three degrees

degrees of

of

9 relationship (e.g., consanguinity consanguinity or affinity) to to aa party

party or

or aa lawyer

lawyer in

in the proceeding. 77 GCA the proceeding. GCA §§ 10

11 6105(d) provides that 6105(d) provides that "[t]he "[t]he degree

degree of

of relationship

relationship is calculated accordingtoto the calculated according the civil civil law

12 12 system," 12 and system,"12 and"third "thirddegree

degreeofof relationship"

relationship"isisdefined

definedininthe

the Model

Model Code

Code as the "great-

"great-

13 13 grandparent, grandparent, grandparent, grandparent,parent, parent,uncle,

uncle,aunt,

aunt,brother,

brother,sister,

sister,child,

child,grandchild,

grandchild, great-grandchild, great-grandchild,

14 nephew niece." 13 Neither or niece."13

nephew or NeitherJudge JudgeTolentino

Tolentinonor

norhis

hiswife

wife are

are related

related by

by blood

blood or origin

origin

15

(consanguinity) by marriage (consanguinity) nor by marriage(affinity)

(affinity) to Attorney General General Moylan

Moylan as

as Mr. Moylan

Moylan does

does not

not

16

17 17 fall under under any

any of these relationships.

relationships.

18 Extending the "third degree of ofrelationship"

relationship"beyond

beyond that

that which

which is contained in the the Model

Model

19 Code to include include relationship by affinity affinity (marriage),

(marriage), Attorney General General Moylan

Moylan is

is not

not related

related by

20 either Judge

affinity to either Judge Tolentino Tolentino or the judge's spouse.

the judge's spouse. The

The "relationship"

"relationship" between

between Judge

Judge

21 Tolentino and Attorney General and Attorney General Moylan is best illustrated by the illustrated by the legal

legal maxim

maxim of "ajfinis

"affinis Mei

mei

22

23

24 10 See,generally, 10 See, generally, 46 46 Am.

Am. Jr. 2d Judges §§ 112 (Aug. 2024).

Jr. 2dJudges

11 Id. 11 Id (citing Alabama State State Personnel

Personnel Bd. Garner, 4 So.3d Ba V Garner, So.3d 545 (Ala. Civ. App. Ct. 2008)). See also, Suggs v. State, 545 (Ala, State, 25 51 N.E.3d 1190, 1194 (Indiana 2016)("Related by marriage"

20l6)("Related by marriage" isis commonly commonlyreferred

referred to

to as

as affinity,

affinity, which

which is is defined

defined as

'the 'the connection connection existing

existing in

in consequence

consequence ofrnarriage

of marriagebetween

betweeneacheachofofthe

themarried

marriedpersons

persons andand the

the kindred

kindred of of the other.

26 It is distinguished distinguished from

from consanguinity,

consanguinity, which denotes denotes relationship

relationship byby blood."')(citation blood."')(citation omitted).

12 See, iz See, Alabama State Personnel Bal, Bd., supra ("The ("The civil

civil law

law method

method of ofcomputing

computing degrees

degrees of ofkinship

kinship isis to begin the 27 count with one of of the persons n question and proceed up to the common common ancestor

ancestor and

and then down

down to to the

the other

other person,

calling it a degree degree for

for each person both ascending and descending. The number number thus counted expresses the degree of 28 kinship.")(1l1ndingnonoduty kinship.")(finding dutytotorecuse recusebecause

becausejudge

judge and

and attorney

attorney in

in case

case were

were not

not related within the the required degree).

13 See Model Code, Attachment A at p. 10 ("Terminology"). 13 See Model Code, Attachment A at p. IO ("Terminology").

People v. Aguon, Criminal Case No. CF0303-22 Decision Decision and Order Denying and Order Denying the OAG's Statement the OAG's Statement of

ofObjection

Objection 77 GCA

GCA §§ 6107

6107 and

and Motion

Motion to

to Disqualify

Disqualify

12 of20

Page 12 of20

1 a/finis ajfinis non a/finis" or "A relative mihia]j"inis" estmini

non est relative of of my

my relative

relative by

by marriage

manage is relative." Suggs my relative."

not my is not

2 v. State, 51 N.E.3d 1190, 1194-1195 v. State, 1194-1195 (Indiana (Indiana 2016)

2016) (quoting

(quoting Ballentine's

Ballentine's Law Dictionary with 3 Pronunciations 45 Pronunciations 45 (3d 1969)). More clearly (ad ed. 1969)). clearly stated, stated, in

in determining whether two persons are 4 related by affinity, or marriage, marriage, "the

"the relationship

relationship does

does not exist where

where more than one marriage is 5

6 required to establish it." Johnson v. State, 146, 147, State, 169 Tex.Crim. 146, 147, 332 S.W.2d 321, 322 (Tex.

7 Ct. Crim.

Crum. App.

App. 1960).

1960). Thus,

Thus, Judge

Judge Tolentino

Tolentino isis not

not related

related to

to Attorney

Attorney General

General Moylan

Moylan within

8 any degree of of affinity or relationship.

9 Moreover, the dissolution of the the marriage

marriage between

between Judge Tolentino's wife and Attorney 10

11 11 General Moylan over twenty years ago also also terminated

terminated the

the "affinity"

"affinity" between the former spouses

12 12 resulting from such marriage. Herrera v.

v. Hernandez, 491, 494 Hernandez, 80 Cal.Rptr.3d 491, 494 (Cal.

(Cal. Ct.

Ct. App. 6th

App. 6th

13 13 Dist. 2008)

Dist. 2008) (dissolution (dissolution of marriage

marriage terminates

terminates affinity

affinity between parties arising between parties arising from such from such

14 of whether

marriage for purposes of determination of whether aa juror is subject to to challenge for bias even if 15 15 the the former spouses have aa child mer spouses child together together). Consequently,

Consequently, while Judge TTolentino while Judge olentino and his nd his

16

17 stepchildren enjoy stepchildren enjoy aa relationship ofaffinity in the first degree to each other relationship of other by by virtue

virtue of

of the

thejudge's

judge's

18 marriagetototheir manage mother, 14there theirmother," thereisisabsolutely absolutely no

no relationship

relationship to any

any degree

degree between

between Judge

Judge

19 Tolentino and Attorney General Moylan. Consequently, the provisions of Section 6105 6105 do not

20 apply_ is apply.15 21

22

23

24 14 In re Joseph & Sally Grablich Trust, 984 N.W.2d 517, 552-553 (Mich. Ct. App. 202l)(citing Bliss v. Caille Bros. 14 In re Joseph Sally Grablich Trust, 984 N.W.2d 517, 552-553 (Mich. Ct. App. 202l)(citing Bliss v. Cai/le 25 Co., 113 N.W. 317 113 N.W. 317 (Mich.

(Mich.l l907)("when

907)("whenaacouple

couplemarries,

marries,each

eachspouse

spouse becomes

becomes related by affinity affinity to

to the

the other spouse's

blood blood relatives relatives by the same degree")(emphasis added)).

same degree")(emphasis added)).

15 Attorney General Moylan is not a "party" to the criminal proceeding under Section 6105(b)(5)(A), but merely a 15 26 Attorney General Moylan is not a "party" criminal proceeding under Section 6105(b)(5)(A), but representative of ofthe the People, who, along with with the Defendant, are are the

the only

only "party"

"party" to

to the

the criminal

criminal case.See, See, People People v.

27 Robinson, Robinson, 27 Misc.3d, 635, 637, 898 635, 637, 898N.Y.S.2d

N.Y.S.2d 438,439

439(Sup.Ct.

(Sup.Ct.2010)("the

2010)("the only parties to criminal litigation litigation are

are the

th

People, represented by the district district attorney

attorney of

ofthe

thecounty,

county,and

andthe

theaccused,

accused, represented

represented byby assigned assigned or or retained

retaine

28 counsel."); 55 GCA counsel."), GCA §§ 30l03("The 30103("TheAttorney

AttorneyGeneral

General shall

shall have

have ... the

the right

right ... to

to bring

bring action

action on

on behalf

behalf ofofGuam

Gua

representing representing thethecitizens citizensasasaawhole

wholefor

forredress

redressofofgrievances

grievanceswhich

whichthethecitizens individuallycannot citizensindividually cannot achieve....."

achieve ..... " AAs

such, Section 6105(b such, Section 6l05(b)((5)(A) does )((5)(A) doesnot

notapply

applybecause

becauseJudge

Judge Tolentino

Tolentinoisisnot

notrelated

related within

within three

three degrees to aa party.

People v. Aguon,

Aguon, Criminal Case No. CF0303-22 CF0303-22

Decision Decision and Order Denying and Order Denying the

theOAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 13 of20

13 of20

l D. The OAG OAG has has provided

provided no

nolegal

legalauthority

authoritynor

norfactual

factualaverments

avermentsnecessary

necessary to

to

establish establish aa relationship relationship requiring

requiring disqualification disqualification or

orrecusal

recusal under

under Section

Section 6105.

2

3 The OAG OAG relies

relies heavily

heavily on

on the

the decisions

decisions in People vs.

vs. Taitingfong, Criminal Criminal Case No.

Case No.

4 CF0024-24 (Jun. 4, 2024)

(Jun. 4, 2024) (Iriarte, J.), and in in People

People vs.

vs. San

San Agustin, 2024 Guam 2 in support support of

of

5 its Objection. However, However, neither

neither case

case provides legal

legal support

support for

for the

the finding

finding that

that Judge

Judge Tolentino

6 is disqualified from presiding disqualified from presidingover over cases

casesinin which

which the

the OAG

OAG is involved,

involved, as

as both

both can

can be

be

7 distinguished from the case before this Court. 1616Curiously, Curiously,Acting

ActingChief

Chief Prosecutor

Prosecutor Rudolph

Rudolph fails

fails

8

9 to cite or discuss this Court's Decision discuss this Decision and and Order

OrderDenying

Denyingthe

the OAG 's Statement

OAG's Statement of Objection 77

10 GCA GCA §§6107 6107 Ana' Motion to

And Motion to Disqualify Disqualf ininPeople

Peoplevs.

vs. Ybanez,

Ybanez, Superior Court of Guam Guam Criminal

11 11 Case Case No. CF0447-23 (Jun. 12, CF0447-23 (Jun. 12, 2024)

2024) in

in its

its Objection despite Ms. Rudolph despite Ms. having filed the Rudolph having the

12 12

17

Objection Objection in in that

that case and

and being

being served with

with the

the Court's

Coue"t'sdecision

decisiondenying

denyingthe

thesame.

same."

13

14 1.

1. San Agustin does not

not apply

apply to the instant

instant case.

case.

15 The OAG OAG misapplies

misapplies the

the holding

holding of

ofthe

the Guam

Guam Supreme

Supreme Court

Court in San

San Agustin, which is

16 16 largely procedural.

procedural. Summarized most simple form, the rule inSan Summarized in its most San Agustin Agustin is that a judge

17 who is disqualified disqualified from presiding presiding over

over aa case

case must

must also

also be disqualified

disqualified from serving serving as

as the

the

18 recusal judge in the same case. recusal judge case. San San Agustin

Agustinatat~

71 36 ("We

("Weexercise

exerciseour

oursupervisory

supervisory authority

authority to

19

20 clarify clarify that that aa disqualified

disqualified judge

judge should

should not be appointed as as aa recusal

recusaljudge.").

judge."). San

San Agustin

Agustin does

21 not, not, as as the

the OAG

OAG contends,

contends, extend any way extend in any way to

to support

support aa finding

finding that

that Judge

Judge Tolentino

Tolentino is

is

22

23 16 In both cases, the Defendant, not the OAG filed the Objection, Moreover, trial courts are not bound by the decisions 16 In both cases, the Defendant, not he OAG filed the Objection. Moreover, courts are decision 24 of of other other trial trial courts'

courts' ruling

rulingon

onthe

thesame

same issue,

issue; therefore, this Court does not adopt adopt thetheruling ruling inTaitingfong.

Taitingfong. Although

San Agustin is San Agustin is controlling controllinglaw

lawininthis

thisCourt,

Court,ititisisinapplicable inapplicableininthis

thiscase

casebecause

because itit does

does not involve

involve the

the circumstances

circumstance

25 addressed addressed by by the Guam Supreme Supreme Court

Court in San Agustin.

San Agustin.

17 See, Decision and Order Denying the OAG 's Statement of Objection 7 GCA §6107 And Motion to Disqualyjf in 17 See, Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 And Motion to Disqualify· 26 CF0447-23 (Jun. 12, 2024), which was served upon upon the the OAG

OAG via via Email on

on June

June 12, 2021;

2021,Notice

Notice of

ofEntry

Entry on

on Docket

Docke

of Decision and of Decision Order Denying and Order Denying thethe OAG's OAG's Statement

Statementof ofObjection Objection77GCA GCA§ §6107And 6107 And Motion Motion to to Disqualify

Disqualyjf (Jun 13,

27 2024) which which waswas served

served upon the OAG via via mail mail on on June

June 13,

13, 2024. There is no explanation for the glaring omission of of this this Court's Decision in Ybanez Ybanez from the OAG's OAG's Objection, Objection, andand Ms.

Ms. Rudolph

Rudolph is is reminded reminded that Rule 3.3 of of the th

28 Guam Rules of Professional Professional Conduct

Conduct mandates

mandatesaalawyerlawyerpractice practicecandor

candortoward

towardthe thetribunal

tribunaland

andnot

notknowingly

knowingly fai

fail

to disclose toto the the tribunal

tribunal legal

legal authority

authority in

in the

the controlling jurisdiction known controlling jurisdiction known toto the the lawyer

lawyer toto be

be directly

directly adverse

adverse to

the position of the client.

People v. Aguon,

Aguon, Criminal Case

Case No. CF0303-22

CF0303-22

Decision Decision and Order Denying and Order Denying the

theOAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 14 of20

of20

1 disqualified in the the instant

instantcase

caseor

orin

inall

all cases

casesinvolving

involving Attorney General General Moylan. Neither

Neither that

that

2 18 question nor one one remotely like

like itit was

was before

before the

the Guam

Guam Supreme

Supreme Court inSan

San Agustin.

Agustin.18

3 2. The

TheCourt's

Court'sDecision

Decision and Order in Ybanez applies here.

4 In In People

People v.

v. Ybanez

Ybanez et al., Superior

Superior Court of

ofGuam

Guam Criminal

Criminal Case

Case No.

No. CF0447-23

CF0447-23 (Jun.

(Jun.

5

6 12, 2024), this 12, 2024), this Court Court rejected

rejectedthe

the OAG's

OAG's Motion

Motion to

to Disqualify

Disqualify Judge

Judge Tolentino

Tolentino on

on identical

identical

7 finding: 19 grounds, Hnding:19 8 Judge Tolentino's spouse Judge Tolentino's spouse is is not not a party

party to

to the

the proceeding,

proceeding, or or an

an officer,

9 director, director, or

or trustee of

of aa party. She is not acting as as aalawyer

lawyer in

inthe

theproceeding;

proceeding,

nor known

known by by the

the Judge

Judge to to have

have an

an interest

interest that

that could

could bebesubstantially

substantially

10 affected by the affected by the outcome outcome of of the

the proceeding.

proceeding. She is is not, not, to

to the

the Judge's

Judge's

11 1 knowledge, knowledge, likely to to be be aa material

material witness

witness in

in the

the proceeding.

proceeding. Therefore,

none none ofof these

these circumstances applies to circumstances applies to Judge Judge Tolentino

Tolentino to to invoke thethe 12 12 mandatory disclosure requirements mandatory disclosure requirementsof of Section Section 6106.

13 This Court

Court ruled

ruled further that Judge

further that JudgeTolentino's Tolentino's prior

prior recusals

refusals due

dueto

to Mr.

Mr. Moylan's

14 14 biological biological relation relation to his

his stepchildren

stepchildren did

did not

not mandate

mandate his

his disqualification

disqualification under

under the

the

15

circumstances, particularlywhere circumstances, particularly wherethere thereisisno

noallegation

allegation of

of a conflict

conflict other

other than the

the mere

mere fact

fact of a

16 16

17 17 familial relationship relationship between Mr. Moylan Moylan and judge's stepchildren and the judge's stepchildren:

18 ...[I]n ... [I]nconsidering

consideringdisqualification disqualificationunder

under Section

Section 6105(a),

61 0S(a), "what

"whatmatters

matters is

not 'actual bias,' butbut the 'appearance of bias."'bias."'Van VanDox

Dox,1132, citing Dizon

Dizon

19 v. v. Super

Super Cr.,

Ct., 1998 Guam3,

1998 Guam 3 'll8.8.In Inevaluating

evaluatingthe

theOAG's

OAG's claims, this Court

20 assumes assumes as astrue

trueall

allevidence

evidence found

found in in the

the record

record and

and in

inthe

theObjection,

Objection, even

if if uncorroborated

uncorroborated by by additional additional evidence, and applies "the standard of a standard of

21 'reasonable person' who who knows knowsall allthe

thefacts,

facts,and

andunderstands

understands the contexts

of ofthe jurisdictions, parties, parties,and

andcontroversies

controversiesinvolved

involved..."

... "Id

Id.1132,

, 32, quoting

22 Ada v. v. Gutierrez, 2000 Guam Guam22 22,,'W12-13.

12-13.Moreover,

Moreover, "[a] court should "[a] court should not

23

24 18 In San Agustin, Judge Tolentino voluntarily reused himself rom hearing the criminal matter due to a close personal is In San Agustin, Judge recused himself from hearing the criminal matter due to a persona 25 relationship with both defendants in that case. case. As distinguished from the instant matter, the the conflict conflict involved parties to the criminal proceeding, not Attorney General Moylan, who who isis not not aa party

party inin this

this case. See, fn.

case. See, 15, supra. More fn. 15, Mor

26 importantly, San Agustin addressed whether Judge Tolentino, Tolentino, who who had

had previously

previously recused

reused himself

himselffromfrom presiding presiding over

ove

the trial court ease, was court case, was also

also disqualified

disqualified from

from sitting asas the

the recusal

recusal judge

judge in

in the

the same

same case.

case. The

The Supreme

Supreme Court simply

27 decided, as decided, as to Judge Tolentino's to Judge recusal decision, Tolentino's recusal decision, "Under "Under 77 GCA

GCA§§6107,6107, aa disqualified disqualified judge

judge lacks

lacks the

the power

power to

to hear

hea

and determine the matter. Once disqualified, disqualified, aa judge

judge can

can take

take no

no action -- even when acting in a even when acting in a limitedlimited capacity as as a

28 recusal judge." The substantive question of disqualification involved facts very specific to Presiding Judge Alberto C.

recusaljudge." Lamorena III Lamorena III and and Attorney

Attorney General

General Moylan

Moylanand,

and, therefore,

therefore, are

are distinguished

distinguished on on those facts from application here.

19 The Court incorporates its Decision in 19 The Court incorporates its Decision Ybanez herein as if fully set forth.

People People v. Aguon, Criminal Criminal Case

Case No. CF0303-22

Decision and Decision Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of GCA § Objection 77 GCA andMotion 6107 and § 6107 Motion to

to Disqualify

Disqualify

Page 15 of20 Page 15 of20 1 hypothesize about what the reasonable person would believe only upon the moving party's

party's allegations.

allegations. Instead,

Instead, itit should

should decide

decide what

what the

the reasonable

reasonable

2 person would believe about a judge's judge's partiality given all the relevant facts 3 controversy." Ada in the controversy." ,r 12.

Ada 'll

***

***

4

In the instant case, the non-disclosure of of the relationship complained of of by 5 the Office the Office of the

the Atto

Attorney General ddid no rney General nott fall fall within

within the

the spspecific

ecific

6 disqualification disqualification provisions provisions of

of 77 GCA

GCA §§ 6l05(b),

6105(b ); therefore,

therefore, Judge Tolentino Judge Tolentino

was not required to disclose and seek any waivers or or agreements agreements from the

7 parties under Section 6016. As such, the Court DENIES the Objection of of

20

8 the OAG to to Judge

Judge Tolentino's

Tolentino's competency

competency onon these

these grounds.

grounds."

9 3. Under Underanan"objectively

"objectivelyreasonable

reasonable person"

person" standard

standard and

and considering

considering the

the American

10 10 Association's Formal

Bar Association's Formal Opinion Opinion 488,

488, Judge Tolentino was Judge Tolentino to required to

was not required

11 disqualify himself

himself in this case.

12 12 Court addresses the "objectively reasonable Finally, the Court reasonable person" standard standard requirement in

13 13 viewing the disqualification question question in this case. The OAG OAG correctly

correctly states

states the legal

legal standard

standard

14 14 applicable in determining whether a judge must be disqualified disqualified under the provisions of Section 15 15 "A court

6105, quoting San Agustin: "A court should should not

not hypothesize

hypothesize about

about what

what the

the reasonable

reasonable person

16 16

17 17 would believe about aa judge's relevant/acts judge's partiality given all the relevant facts in the controversy.... Under

18 this objective test, ... 'the court court asks whether a person of all the facts person with knowledge of facts would 19 9 significant rlsk perceive a slgnlficant risk that that the

the judge

judge w11I

will resolve

resolve the

the case

case on

on aa basis merits.779 basls other than the merits."'

20 Objection at pp. 4-5 (quoting San Agustin Agustin at

at IfJr 23) (emphasis added). Judge Tolentino's added). Judge Tolentino's detailed 21

22 Answer provides relevant facts close personal facts establishing that no close personal relationship exists between 22

23 23 himself and Attorney General Moylan, nor between Judge Tolentino's wife and Mr. Moylan. The himself

24 24 OAG's OAG's Objection Objection and

and Response

Response only

only declare,

declare, without

without citing

citing specific

specific facts,

facts, that aa close

close personal

25 . . .

relationship exlsts. relatlonshlp exists.

26

27 27

28

20 See, Ybanez at pp. 20 See, Ybanez at pp. 13-15.

People v. People v. Aguon, Criminal Case No.

No. CF0303-22

Decision Decision and Denying the and Order Denying the OAG's OAG's Statement of Objection 77 GCA Statement of GCA §§ 6107 6107 and Motion to

and Motion to Disqualify

Page 16 of20

of20

l In In its

its Formal

Formal Opinion

Opinion 488

488 (Sept. 5,

5, 2019),

2019), the

the American

American Bar

Bar Association,

Association, considering

considering

2 2 judges' obligation obligation to disqualify

disqualify themselves

themselves in proceedings they have proceedings in which they have social social or close

3 personal personal relationships with the lawyers lawyers or

or parties

parties other

otherthan

than aa spousal,

spousal, domestic partner or other 4 close family relationship, looks to relationship, looks to Rule Rule 2.11

2.11of

of the

the Model

Model Code of

of Judicial Conduct("Model Judicial Conduct ("Model

5

6 Code")

Code") requiring requiring disqualification disqualification "because "because their

their impartiality

impartiality might

might reasonably

reasonably be questioned."

questioned."

7 7 ABA ABAFormal FormalOp.

Op. 488

488 at

at 11 (Sept. 5, 2019) (citing 5, 2019) (citing N.Y.

N.Y.Jud.

Jud. Adv.

Adv.Op.

Op.11-125,

11-125, 2011

2011 WL

WL8333125

8333125

8 *4 *4 (Oct.

(Oct. 27, 27, 2011).

2011). In

In this

this regard, the ABA

ABA opined

opinedthat

that "Judges

"Judges are

are ordinarily in

in the best position

9 to assess whethertheir assess whether their impartiality impartiality might reasonably reasonably be questioned when lawyers lawyers or parties with

10

11 11 whom they they have relationships...appear beforethem."

relationships ... appear before them."Id.

Id.However,

However,the

theABA

ABA notes

notes that "in

that "in

12 12 smaller communities and andrelatively

relatively sparsely-populated judicial judicial districts, judges may districts, judges may have have social

13 and personal contacts and personal contacts with with lawyers and

and parties that are

are unavoidable.

unavoidable. In

In that

that circumstance,

circumstance, too

14 14 strict strict aa disqualyication disqualification standard standard would

would be

be impractical

impractical to

to enforce

enforce and would potentially potentially disrupt

15 15 16 the administration of justice." Formal Op.

ofjustice." Op. 488 488 at

at 22 (emphasis added). The (emphasis added). The ABA ABA also

also recognized

16 17 17 that over time relationships change change "or

"or may have ended sufficiently sufficiently far

far in

inthe

the past

past that it is not a

18 18 current concernwhen current concern when viewed viewed objectively."

objectively." Id.

Id. "Finally,

"Finally, judges

judges must

must avoid

avoid disqualifying

disqualifying

19 9 themselves themselves too tooqulckly

quicklyorortoo

toooften lest

often htlgants

lest litigants encouraged bebe to use

encouraged disqualification motions as d1squa11Hcat1on

to use as 20 a means meansof ofjudge-shopping, or other judges in the the same

samecourt

court...become

... overburdened." Id.

overburdened."

21 The Formal Opinion

Opinion tracks the rationale rationaleof

ofSan

San Agustin, wherein

wherein the

the Guam

Guam Supreme Court

22

23 declared, "Our "Our recusal

recusal statute promotes fairness fairness by avoiding the

the appearance

appearance of bias, but a party's party's

24 one-sided perception of of an appearanceof

an appearance of bias

biasisisnot

notgrounds

groundsfor

fordisqualification."

disqualification."San

San Agustin

Agustin at

at

25 25 | u vv I I . I ll» 25.The Jr 25. The OAG OAG advances

advances its

its Ob]ect1on solely on

Objection solely on aa "fam111al relatlonshlp"and "familial relationship" andaaclaim claimby

by Chief

Chlef

26 Prosecutor Rudolph that Prosecutor Rudolph that this this relationship

relationshipisis "significant and continuing"

continuing" without any facts facts

27 28 presented to to illustrate

illustrate this

this condition.

condition. This is simply not enough.

28

People People v. Aguon, Criminal Criminal Case

Case No. CF0303-22

Decision Decision and Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and

andMotion

Motion to

to Disqualify

Disqualify

Page 17 of20 Page 17 of20 1 Adopting the recommendations of of the ABA in

in its

its Formal Opinion

Opinion 488,

488, and, based on the

2 objective reasonable reasonable person standard standard and

and considering

considering the

the Answer filed by Judge Tolentino and 3 judicial community the judicial community and and the

the lack

lack of

of factual support

support provided

provided by the OAG, as well as the context 4 in which the disqualification is sought, the Court makes the following following findings:

findings:

5

6 1. Other Otherthan

thanthe

themere

merefact

fact of

ofa biological relationship between Attorney General Moylan Moylan

7 and Judge Tolentino's stepchildren, stepchildren, there is no credible evidence of any relationship 8 -within within three

three degrees

degrees or otherwise - between between Mr. Moylan

Moylan and

and Judge Tolentino.

9 2. The

Thecircumstances

circumstances since

since October,

October, 2022

2022 under

under which

which Judge

Judge Tolentino

Tolentino disqualified

disqualified

10

11 himself voluntarily have changed, voluntarily have changed, and and there

there is no

no evidence

evidence to

to contradict

contradict Judge

Judge

11

12 12 Tolentino's description of the meeting between between Attorney

Attorney General

General Moylan,

Moylan, the

the A

AG's

G's

13 staff, Judge Tolentino and court staff staff affirming

affirming that any conflict relating to the familial 14 association which previously existed between Judge Tolentino and Attorney General 15

Moylan "no

"no longer

longer existed,"

existed," therefore,

therefore, Judge

Judge Tolentino is not

not required

required to disqualify

16

17 himself himself under Section 6105, 6105;

18 3. Neither Neither Judge

Judge Tolentino

Tolentino nor

nor his

his spouse

spouse (as

(as the

the former

former wife

wife of

of Attorney

Attorney General

General

19 Moylan) are within the third degree of of relationship to any party to the proceeding nor 20 to anyone acting as a lawyer in the proceeding, as there is no legal authority cited by 21 the OAG which affirms a relationship within within three

three degrees

degrees after the termination of of a

22

23 marriage, which is a relationship relationship by

by affinity;

affinity,

24 4. Attorney AttorneyGeneral

GeneralMoylan

Moylanisisnot

notaa"party"

"party"totothe

theproceeding,

proceeding, but

but aa representative

representative of

of

25 of Guam in matters brought in the name of the People of of the People of Guam;

Guam,

26

27

28

People v. Aguon,

Aguon, Criminal Case

Case No. CF0303-22

CF0303-22

Decision Decision and Order Denying and Order Denying the

theOAG's

OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 18 of20

of20

l 5. Attorney AttorneyGeneral

GeneralMoylan

Moylanand

and Mrs.

Mrs. Tolentino's

Tolentino's childrenare

children are now

now grown

grown adults

adults living

2 on their

their own,

own, which

which poses

poses aasignificant

significantchange

changeininrelationships

relationships distancing

distancing Judge

Judge

3 Tolentino from Attorney General Moylan, General Moylan;

4 6. There

Thereisisno

noevidence

evidenceofofaa"close

"closepersonal

personalrelationship"

relationship"between

betweenMr.

Mr.Moylan

Moylanand

and Judge

Judge

5

6 Tolentino requiring requiring disqualification disqualification under

under Section 6105 orthe

6105 or theModel

Model Code;

Code,

7 7. InInthis thissmall

smalllegal

legalcommunity

communityininGuam

Guamand

and with

with aa trial court bench consisting consisting only

only of

of

8 four (4) dedicated

dedicated criminal

criminal court

court dockets, requiring Judge Tolentino, who is one of the Judge Tolentino,

9 four (4)

(4) judges

judges assigned

assigned to

to the

the criminal

criminal docket,

docket, to

to disqualify

disqualify himself

himselfpursuant

pursuant to

10

11 11 Section Section 6105 from all cases 6105 from in which cases in which Attorney

Attorney General Moylan

Moylan represents the People represents the People

12 12 of of Guam

Guam would (a) be

be impractical

impractical to enforce,

enforce, (b)

(b) negatively

negatively impact

impact the

the efficient

efficient

13 13 administration of justice, administration of justice, and (c)

c) lead

leadtotojudge-shopping

judge-shoppingand/or

and/or overburden

overburden other

other

14

21

judges in the same

samecourt.

court."

15

Having made

made the following

following findings,

findings,the

theCourt

Courtfinds

finds that

that Judge

Judge Tolentino is

is not

not required

16

17 to disqualify himself himself under Section 6105(a)

under Section 6105(a) and andrejects

rejectsthe

theOAG's

OAG's Objection.

18

19 21 21 Indeed,the Indeed, thefiling filingbybythe

theOAG

OAG of

of over fifty

fifty (50)

(50)identical

identicalObjections

ObjectionstotoJudgeJudge Tolentino's Tolentino'sassignment

assignment in in criminal crimina

20 20 cases has had cases has significant negative impact on the had aa significant the caseload caseload of ofthe

the three

three remaining

remaining dedicated

dedicated criminal

criminal courts.

courts. For

Fo

example, asserted speedy trial cases in which Judge asserted speedy JudgeTolentino Tolentino was was assigned assigned pursuant

pursuant totothe

theAdministrative

Administrative Rule were

21 21 reassigned reassigned to to other criminal due to judges due

criminal judges to the the running

runningof of the

the speedy trial clock, speedy trial clock. In In CF270-24,

CF270-24, People v. v. Michael Michae

Gregory Gregory Royal, Rosal, this

this Court

Court was

was assigned to to take thethe matter matter to to trial

trial with only four days remaining on his speedy trial 22 22 See. Min.

clock. See. Min. ofofAug. 2024Hrg.

Aug.2,2,2024 9:22:26AM.

Hrg.atat9:22:26 AM.On OnAugust August2,2,2024,

2024,despite

despitethat

thathethematter

matterhad had been

been pending

pendin

before Judge before Judge Tolentino TolentinosincesinceMay

May24,24,2024,

2024,and and the Defendant having the Defendant having asserted asserted his

his right

right toto speedy

speedy trial

trial on

on June

June 21,

23 2024, the People 2024, the People were unprepared unprepared forfortrial

trial and

andfailed

failed to

to file

file any

any witness

witness lists by the Pre-trial Conference.

Conference. On On August Augus

2, 2024, 2024, thethePeople People filed

filed a Memorandum SupportingPeople's Memorandum Supporting People's Motion Motion to Dismiss Without Prejudice in in the Interest Interest oof

24 Justice andthe Justice and Courtgranted theCourt grantedthe

thedismissal

dismissalbutbuthashasreserved reservedon onthetheissue issueofofwhether

whetherititwill

will be dismissed with or withou without prejudice. Id. TheTheCourt Courtexpresses

expresses grave

grave concern

concern about whetherwhether thesetheseObjections Objectionshave

havebeen

beenfiledfiled by

by the

theOAGOAG in good

25 faith. In In at

at least

least one case

case assigned to thisCourt, Court, People

People of ofGuam

Guam v. v. Prima

PrimaSebastian,

Sebastian, Criminal Case No. CF0506-24, CF0506-24 the Objection, filed filedon onJuly

July 29,

29, 2024, pending this 2024, was pending thisCourt's Court's determination

determinationas asrecusaljudge recusal judge(see (seeNtc.

Ntc.of ofAssignnlent

Assignmen

26 of Recusal of Recusal Judge (Jul. 31, Judge (Jul. andCRl.l 2024)and

31,2024) CR1.1Form Form33(Aug.(Aug. 1, 1, 2024))

2024)) when

when thethePeople

People filed

filed a Motion

Motion to Dismiss

Dismiss on

August 12, 2024. Despite 12, 2024. Despite thethe August August 12,

12,2024

2024Motion

Motion to to Dismiss,

Dismiss, on August 13, 2024,the 13, 2024, thePeople

People filed

filed aa Response

Respons

27 to Judge Tolentino's Answer.

Judge Tolentino's Answer.One Onemight mightcontemplate

contemplatethat that perhaps perhaps the assigned

assignedprosecutor

prosecutorfiledfiled the

theMotion

Motion to Dismiss

Chief Prosecutor

without Chief Prosecutor Rudolph being aware aware of of the the Motion

Motion when she she filed filed the Response.

Response.However,

However, ChiefChiefProsecutor Prosecuto

28 Rudolph filedfiled both the Motion both the MotiontotoDismiss Dismisson onAugust

August12, 12,2024,

2024,and and the

the Response

Response on on August

August 13, 13, 2024.

2024. Magistrate

Magistrat

Judge Jonathan Judge JonathanQuan Quangranted grantedthetheMotion

Motiontoto Dismiss

Dismiss on on August

August 13, 13, 2024.

2024. Order

Order (Re: (Re: Dismissal Dismissal Without

Withou

Prejudice)(Aug. Prejudice)(Aug. 13, 13, 2024).

People v. Aguon, Criminal Case Case No. CF0303-22

CF0303-22

Decision and Order Denying Denying the OAG's Statement the OAG's of Objection Statement of Objection 77 GCA GCA §§6107

6107 and Motion to

and Motion to Disqualify

Disqualify

Page 19 of20

19 of20

l CONCLUSION 2 Although this Court Judge Tolentino's Court finds that the OAG has failed to raise the issue of Judge Tolentino's 3 disqualification disqualification timely and therefore timely and has waived therefore has any right waived any to advance right to now, even advance itit now, if it were raised even if

4 at the the earliest practicable time, earliest practicable disqualifying facts time, no disqualifying exist to facts exist support Judge to support Tolentino's Judge Tolentino's

5

66 Attorney General Moylan and/or disqualification in cases involving Attorney of the Attorney and/or the Office of

7 7 General.

General. This This Court

Court finds

finds that

that Judge

Judge Tolentino

Tolentino is

is not

not disqualified

disqualified under

under 77 GCA

GCA §§ 6105(b)(5)(A)

6105(b)(5)(A)

8 or (B) or Canon 3 of the Model Code from the Model presiding over this case on the grounds that he has any from presiding

9 familial association with Attorney Attorney General Notwithstanding Attorney Moylan. Notwithstanding

General Moylan. General Moylan's Attorney General Moylan's l0

11 11 biological relationship to Judge Tolentino's stepchildren and Tolentino's stepchildren former marriage to Mrs. Tolentino, and former

12 neither Judge Tolentino nor his wife are related within to Attorney within three degrees to General Moylan Attorney General

13 13 either by affinity or consanguinity, regardless of whether Mr. Moylan is a party to the litigation 14 14 (which he (which is not)

he is or appearing

not) or for a party.

appearing as a lawyer for 15 15 For the reasons stated herein, herein, the OAG's Statement of Objection and Motion to Disqualify the OAG's Disqualify 16 16 17 17 is REJECTED and the Motion Motion is

is DENIED. case shall This case

DENIED. This be returned shall be to Judge returned to Tolentino for Judge Tolentino

18 18 further disposition. 19 19 SO ORDERED this 6th day of of September, 2024.

20

21 ,.

22 HONORABLE MARIA

MARIA T. CENZON

23 Judge, Superior Court of of Guam

sznvlcz Sl!IIVICI! vIA

VIA I-MAIL

II-MAIL

24 24 ., acknowledge ·acknow•edge mar that an an electrons;

electron1t

Cony Co.,... of

o~ :he

tt-ie Ongma'

orig,na1 was

wa!. e mauled m

mailed to

25 IJG, 6 r A'/°0

/JfP

26 26 Date~·6•1,"/ Dates r,me.1/:Zlp>,.

.Mk/ fume. '/I2 a

27 27 Ala cm 1J11,v1 &t"1 h

M

Deputy Deputy clerk

clerk .. Superior

Super•or Court

(Oyrt of Guam

Guam

28 28

People People v. Aguon,

Aguon, Criminal Case

Case No. CF0303-22

Decision and Decision and Order Denying the Order Denying OAG'ss Statement the OAG' of Objection Statement of Objection 77 GCA GCA § 6107 and

§ 6107 andMotion

Motion to

to Disqualify

Disqualify

Page 20 of20 Page 20 of20