People v. Akoma

Opinion

FI l ED 11 CLERK@151 CLERK OF COURT QGURT 2 AUG 29 PSI 202l1 MIG 232 PM3:3:Lula 44 I

3 SUPERIOR SI *FERNE COURT 4 OF(auAev= UF GLl/\f\f1

5 5

6 IN THE SUPERIOR SUPERIOR COURT OF GUAM

7 PEOPLE OF GUAM, Criminal Criminal Case Case No. No. CM0363-22 8 GPD Report GPD ReportNo. No.21 21-26405 v. 9 DECISION DECISION AND AND ORDER 1o UGOCHUKWU UGOCHUKWU ENYINNAYA AKOMA, DENYING DENYING THE OAG'S 10 DOB: 02/28/1972 DOB: 02/28/1972 STATEMENT STATEMENT OF OF OBJECTION 11 11 7 G.C.A. §§ 6107 7 G.C.A. 6107&&MOTION MOTION TO TO Defendant. Defendant. DISQUALIFY 12 12

13 13 INTRODUCTION 14 14 This matter is before matter is before the theHonorable HonorableAlberto Alberto C. C. Lamorena, Lamorena, III III upon uponthe theOffice Office of the Attorney

15 General's 15 (the "OAG's") General's (the "OAG's") Statement Statement of of Objection Objection 7 7 G.C.A. G.C.A. §§ 6107 6107 & & Motion Motion to to Disqualify Disqualify (the (the 16 16 "Objection"). "Objection"). The TheOAG OAGobjects objectstotothe theHonorable HonorableAlberto Alberto E. E. Tolentino's Tolentino's ("Judge ("Judge Tolentino's") Tolentino's") 17 17 competency competencytotopreside presideover overthe theabove-captioned above-captionedmatter matter under under 77 G.C.A. G.C.A. §§ 6107. 6107. 18 18 Having considered the Objection, considered the Objection, Judge JudgeTolentino's Tolentino's Answer, the OAG's OAG's Response, Response, as as well as as 19 the 19 theapplicable applicablestatutes statutesand and case case law law and relevant portions and all relevant portions of ofthe the record, record, this this Court Court now now issues issues the 20 following followingDecision Decisionand and Order Order DENYING the OAG's OAG'srequest request to to disqualify disqualify Judge Judge Tolentino Tolentino and and 21 reassign this case. case. 22 BACKGROUND

23 Defendant is charged Defendant is with two counts charged with counts of of Fourth Fourth Degree Degree Criminal Criminal Sexual Sexual Conduct Conduct (as aa 24 Misdemeanor). Misdemeanor). See Complaint (Oct. 20, 2022). 25 Judge Tolentino was subsequently Judge Tolentino assigned to subsequently assigned to preside preside over this criminal case. See Notice of

26 Judge JudgeAssignment Assignment (Dec. (Dec. 13, 13, 2022). 2022). 27 27 On July On 19, 2024, July 19, 2024,the theOAG OAGfiled filed their their Statement ofObjection Statementof 6107 & G.C.A. §§ 6107 Objection77G.C.A. & Motion Motion to to 28 Disqualify. Disqualify.The TheOAG OAGseeks seeksJudge JudgeTolentino's Tolentino'sdisqualification disqualificationon on the the following following grounds: grounds:

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22, People of ofGuam v. v. Ugochukwu Enyinnaya Akoma Ugochukwu Enyinnaya Aroma Page 1 of12 11 • • Judge Tolentino's Judge established history Tolentino's established history of of disqualifying himself himself from from matters matters in in which which

2 Moylan appeared Doug Moylan appeared as as private private counsel, counsel, prevents prevents Judge Judge Toler Tolento from from handling handling

3 involving the matters involving matters the OAG nowthat OAG now that Doug DougMoylan Moylancurrently currently serves serves as as the the elected elected

4 General of Guam. Attorney General

5 • • Judge Judge Tolentino's personal relationship with Tolentino's personal with Attorney General Moylan Attorney General Moylannecessitates necessitates his 6 disqualification in matters disqualification mattersinvolving involving the the OAG. Judge Tolentino OAG. Judge Tolentino is is mam'ed married to Attorney 7 General Moylan's General ex-wife. and Moylan's ex-wife. and Attorney Attorney General General Moylan is is the the father father of of Judge Judge 8 Tolentino's step-children. Tolentino's step-children.

Objection at 2 (Jul. 9 See Objection (Jul. 19, 2024).

10 10 On July On July 29, 29,2024, 2024,Judge JudgeTolentino Tolentinofiled filedhis AnswertotoObjection hisAnswer Objection("Answer"). his response, Inhis ("Answer"). In response,

11 Judge 11 udge Tolentino Tolentino challenged challenged the the timeliness timelinessof the OAG's of the Objection. See Answer OAG's Objection. Answer at at 1111 (Jul. 29, ll (Jul. 29, ,r 12 2024). 12 024).Judge JudgeTolentino Tolentinoalso alsomade madethe followingresponses, thefollowing responses,under underpenalty penalty of ofperjury, perjury, which which the the Court Court

13 finds 13 findsparticularly particularlyrelevant relevantin inits its recusal recusal determination: 14 14 • 'Ly • ,r 6.6.That ThatatatMr. Mr.Moylan's Moylan's request, request, aa meeting between him and the undersigned, the undersigned's chamber staff, undersigned's chamber staff, the the Administrator Administrator of of the the Courts, Courts, and and Mr. Mr. Moylan's 15 15 transition chairperson, Mr. Wilfred Aflague, occurred in December December 2022. 16 16 • fl,r 7.7. That • That at this meeting, Mr. Moylan Moylan assured assured me me and the other members in attendance 17 17 that he perceived no conflict in his election as the Attorney General and the prosecution of criminal criminal cases cases before before the the undersigned. undersigned. It waswas agreed agreed that that the the circumstances circumstances 18 18 underlying my recusal in matters recusal in matters that Mr. Moylan Moylan was a a lawyer no longer existed, lawyer no longer existed, to 19 19 wit: that during my term as the the Magistrate Magistrate Judge Judge and and as as aaJudge JudgeI Ihad hadroutinely routinelyrecused reused myself myself from all matters where Mr. Moylan was the the attorney attorney of of a party before me on 20 the basis that he was the the father father of of my my minor minor step-children step-children and that that the minor minor step- step- children children were members of household maintained by me and my wife of and resided in the household 21 and that as of of even date, both step-children have now reached majority and adulthood 22 and have been residing at their own residences in Guam and in the U.S. Mainland.

23 • 1]8. • ,r That That Mr. Mr. Moylan Moylan never never made made an an appearance appearance as as a lawyer lawyer in this case. 24 • 1114. • ,r 14. That my wife Doris L.G. Tolentino Tolentino and Attorney General Moylan were divorced 25 on June 13, 1997, and that there were two minor children at the time of the dissolution ofmaniage, of marriage,totowit: wit: Brandon Brandon(bam (born1990) 1990) and and Angela Angela (born (born 1992). 1992). 26 • 11 • ,r 17. 17. II have never observed observed Mr. Mr. Moylan Moylan and and my my wife involved in any sense in co- co- 27 parenting the children of their marriage manage as asthe thechildren childrenhave have been been raised raised and and provided 28 with protection and care to ensure their healthy healthy development into adulthood, primarily

Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement StatementofofObjection Objection77G.C.A. G.C.A.§§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22,People People of ofGuam Guam v. Ugochukwu Ugochukwu Enyinnaya Enyinnaya Akoma Page 2 of 12 1 by my wife wife and and me, me, and and that that at present they are in fact adults able to conduct and make decisions in their own decisions in life. 2 2

3 3 • 1118. • ,r 18. That based based upon upon the the foregoing averments, the fact that that Attorney Attorney General General Moylan the biologica is the biological fa father of of the the under undersigned's stepchildren signed's stepchildr en provides ovides no ba basis for for 4 4 disqualification under 77 G.C.A. disqualification under G.C.A. §§6105(b) or or that that the theundersigned's undersigned's "impartiality "impartiality might might questioned" as reasonably be questioned" as required requiredunder undersubsection subsection(a) (a). 55

66 • 11 • ,r 19. 19. That "[u]nder subsection 6105(a), 6105(a), what matters matters is not "actual bias", but "the appearance of of bias." Van Van Dox Dox at ,r (citing Dizon v. Super. at 1]32 Super. Ct. Ct. (People), 1998 Guam (People), 1998 7 7 ,r 1010n.3). 3 11 n.3). The appearance appearance of of bias bias is judged from the the standard standard of of aa "reasonable "reasonable knows all person" who knows all the the facts, facts, and and understands understands the the "contents "contents of of the the jurisdictions, jurisdictions, 8 8 parties, and controversies parties, and controversies involved," involved," including such "realities "realities of the Guam judicial system" as system" as the relatively small number number of of lawyers in the Guam barbar and "the nature of of 9 Guam families." Id. Id. (citation (citation omitted). 10 • 'll • ,r 30. 30. My wife and and Mr. Mr. Moylan have been been divorced divorced for for close close to twenty-seven years 11 and that the children of their marriage mam'age are adults livingliving on their own own and well over the age of of Maj rarityand majority andthat thatnonoreasonable reasonableperson personwho whoknows knows all all the the facts facts and and understands understands 12 the contents of of the jurisdiction, jurisdiction, parties and and controversies controversies involved involved in the Guam judicialjudicial 113 t em would s ystem ld conclu concludede t ha t t her e ex is t s a n a p t there exists an appearancep ea r a nce of bbias requiring my ia s r equ ir ing disqualification in this matter. 14 14 d. 15 15 16 On August 14, 2024, 2024, the the OAG OAG filed filed their their Amended Response to to Judge Judge Tolentino's Tolentino's Answer 16 17 ("Response"). ("Response").The TheOAG OAGasserts assertstheir their Objection Objection was timely tiled. filed. See Response at 1-31-3 (Aug. 14, 17 2024).The lg 2024). OAG The OAG expandsonontheir alsoexpands also theirargument argumenthatthatJudge JudgeTolentino Tolentinoisisbiased biasedper per se, se, arguing arguing that 18 19 Judge JudgeTolentino's Tolentino'spersonal personalrelationship relationshipwithwithAttorney Attorney General General Moylan Moylan has has not substantially 19 20 . changed and continues to provide aa basis basis for for his his disqualification. Id. at 3-6. 20 21 On July 30, 2014, this Court was assigned to address the Objection. See Notice of 21 22 Assignment AssignmentofofRecusal Recusal Judge Judge(Jul. (Jul. 30, 30, 2024). 2024). 22 DISCUSSION 23 I. 1. The Law Governing Governing Judicial Judicial Disqualification Disqualification: 24 25 Judicial Judicial disqualifications disqualifications are are governed governed by by the the substantive rules of substantive rules of 77 G.C.A. G.C.A. §§ 6105 6105 and and the the 25 26 procedural rocedural rules rules of of7 G.C.A. G.C.A. §§§§6106 6106 and6107. and 6107. Section Section6105 6105 defines defines the the grounds for disqualifications grounds for disqualifications 26 as follows: follows: 27 (a) Any Any Judge Judge shall shall disqualify disqualify himself himselforor herself herselfinin any proceeding proceeding in in which which his or her 28 impartiality might might reasonably be questioned, but if, following complete disclosure to

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement Statement of of Objection Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22, People People of ofGuam v. v. Ugochukwu Enyinnaya Enyinnaya Akoma Aroma Page 3 of12 of 11 all parties parties in the proceeding proceeding of of the the reasons reasons for for disqualification, disqualification, all parties parties agree to having the Judge continue to Judge continue to sit in the the proceedings, proceedings, he or she she need not disqualify disqualify 2 himself himself or herself. 3 (b) (b) AAJudge Judgeshall shallalso also disqualify disqualifyhimself himselfororherself herselfin inthe the following followingcircumstances, circumstances, but but 4 if, if, following followingcomplete completedisclosure disclosuretotoall allparties parties in inthe the proceeding proceeding of ofthe the reasons reasons for his or her her disqualification, all parties disqualification, all agree to having the Judge parties agree continue to Judge continue to sit in the the 5 proceedings, he or sheshe need neednotnotdisqualify disqualify himself himself or herself: herself: 6 (1) Where Whereheheororshe shehas hasa apersonal personalbias bias or orprejudice prejudice concerning concerning aa party, party, or 7 personal personal knowledge of of disputed disputed evidentiary facts concerning the proceeding; proceeding,

8 (2) Where Whereininprivate privatepractice practiceheheor orshe sheserved served as as aa lawyer lawyer in in the the matter matter in in controversy, or or a lawyer lawyer with with whom whom hehe or or she she previously practiced law served 9 during during such association as such association as aa lawyer or or either either has has been been aa material material witness witness 10 10 concerning the matter, matter;

11 11 (3) Where Whereheheororshe shehas hasserved servediningovernmental governmentalemployment employment andand in in such such capacity participated participated asas counsel, counsel, advisor or material material witness concerning concerning the 12 12 proceeding proceeding or, as as such government employee, such government employee, expressed an official expressed an official opinion opinion concerning the merits of the the particular matter in in controversy; controversy, 13 13

14 14 (4) (4) Where Wherehe heororshe sheknows knowsthat that he he or or she, she, individually individually oror as as aa fiduciary, or or his or her spouse or minor child child residing residing in in his his or or her her household, household, has has a financial 15 15 interest in the subject matter in controversy or or is is aa party party to to the the subject subject matter matter in in controversy controversy or or is is aa party to to the the proceeding, proceeding, oror in in any any other other interest interest that could 16 16 be substantially affected by the outcome of the proceeding; substantially affected proceeding, 17 17 (5) (5) Where Whereheheororshe she or orhis his or orher her spouse, spouse, or or a person within within the third third degree degree of of 18 18 relationship to either either of ofthem, them, or or the the spouse spouse of ofsuch such person: person: 19 19 (A) (A)isisa aparty partytotothe theproceeding, proceeding,or oran an officer, officer,director, director, or or trustee of a trustee of 20 party; party; (B) (B)isis acting acting as as a lawyer lawyer in in the proceeding; proceeding, 21 (C) (C) is known by the Judge to havean is known by the Judge to have an interest interest that that could could be substantially affected affected by the the outcome ofof the proceeding; proceeding, 22 22 (D) (D) is to the Judge's knowledge likelyto is to the Judge's knowledge likely tobe beaa material material witness witness in in the 23 proceeding.

24 See 7 G.c.A. §§ 6105. 7 G.C.A. 6105.

25 Section Section 6106 compels a 6106 compels judge to a judge to disclose disclose aa disqualification disqualificationlisted listedunder § 6105 under§ 6105::

26 Whenever Whenever aa Justice Justice or Judge Judge shall shall have haveknowledge knowledge of of any any fact or facts which, under under provisions of the provisions of6105 6105 of ofthis this Chapter, Chapter, disqualify disqualifyhim himororher herto tosit sitor oract actas as such such in in any 27 action or proceeding pending before him him or or her, her, it it shall shall be his or or her duty to declare the same in open open court court and and cause .a memorandumthereof a memorandum thereofto to be be entered in the minutes. 28 It shall shall be the the duty of of the clerk to transmit forthwith a copy of the clerk to transmit forthwith a copy ofsuch suchmemorandum memorandum to

Decision Decision and OAG's Statement and Order Denying the OAG's of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22, People People of ofGuam v. v. Ugochukwu Enyinnaya AkomaAroma Page 4 o f 12 1 each party or his his or or her her attorney attorney who who shall have have appeared in such action or proceeding, proceeding, except such parties asas are presented in person or by attorney when the declaration is are presented 2 made. 3 See 77 G.C.A. G.C.A. §§ 6106. 6106. 4 If aa judge If judge fails fails to to disclose disclose aa disqualifying disqualifying factor under §6105, factor under§ 6105, then then any any party to the party to the action action who who 5 as appeared 6 has appeared in in the the case case maymay raise raise the objection to the objection to competency. competency. In Inthis this regard, regard, §§ 6107 6107 provides provides as as 6 follows: 77 follows:

8 Whenever a Justice or Judge who shall shall be be disqualified disqualified under the the provisions provisions of of this Chapter to to sit or act act as as such such in action or proceeding pending before him or her in any action 9 neglects or fails to declare his or her disqualification disqualification in the manner provided by this 10 10 Chapter, any party to to such action or such action or proceeding proceeding who has appeared therein may present file with the clerk a written statement objecting to the hearing of to the court and file of such 11 matter or any trial of any issue of fact or law law in in such action action or proceeding proceeding before such Justice Judge, and setting forth Justice or Judge, forth the fact fact or or facts facts constituting the ground constituting the ground of the 12 disqualification disqualification ofof such such Justice Justice or Judge. Judge. Copies of of such such written written statement statement shall shall forthwith be served by the presenting presenting party party on on each each party, party, or or his or her attorney, who 13 13 has appeared in the action or proceeding proceeding and on the Justice or Judge alleged in such 14 14 statement statement to be disqualified.

15 15 Within ten (10) days after the service of of such statement as above provided, or ten (10) days after the filing tiling of any statement, whichever whichever is later in time, the Justice or Judge 16 16 alleged therein to be disqualified may file with the clerk his or her consent in writing 17 17 that the action oror proceeding proceeding continue without him or her, or may tile file with the clerk his or her written answer admitting or denying denying anyany oror all all of of the allegations contained 18 18 in such statement statement andand setting setting forth forth any any additional additional fact fact or or facts facts material or relevant to the question question ofof his or her disqualification. The clerk shall forthwith transmit a copy of 19 19 consent or the Justice's or Judge's consent or answer answer to each party or his or her attorney who shall 20 have appeared in such action or proceeding. Every such statement and every answer shall shall be verified verified in the the manner manner prescribed prescribed for for the the verification verification of of pleadings. pleadings. The 21 statement statement of a party objecting to party objecting to the the Justice Justice or or Judge Judge on on the ground ground of his or her her disqualification disqualification shall shall be be presented presented atat the the earliest earliest practicable practicable opportunity opportunity after after his or her 22 appearance and discovery discovery ofof the facts constituting constituting the ground ground of of the Justice's or Judge's 23 disqualification, and in any event event before before the commencement commencement of ofthe the hearing hearing ofof any issue of of fact in the action or proceeding before such Justice or Judge. proceeding before such Justice or Judge. · ' 24 No Justice or Judge who shallshall deny deny his his or or her her qualification qualification shall shall hear hear or pass upon the 25 question question of his or herher own own disqualification, disqualification, butbut in in every case the question of the Justice's or Judge's Judge's disqualification shall be heard heard andand determined determined by some other Judge. 26 The Presiding Presiding Judge, Judge, or or next next senior senior Judge, Judge, ifif it is the Presiding Presiding Judge's disqualification 27 being requested, that is being requested, shall shall make make such assignment assignment within within five (5) days after receiving receiving from the clerk the notice thatthat the statement statement of of disqualification disqualification has been filed. In the 28 case of of aa Justice's Justice's disqualification, the matter disqualification, the matter shall shall be be heard heard by the Supreme Supreme Court Court constituted without the questioned Justice. Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0363-22, People People of ofGuam v. v. Ugochukwu Enyinnaya Akoma Aroma Page Page 5 of12 of 12 11 If such Judge admits his Ifsuch his or her her disqualification, or files disqualification, or files his his or orher her written written consent consent that that 2 the action or proceeding be tried before another Judge, before another Judge, or or fails fails to file the answer within file the the ten (10) orififititshall allowed, or (10) days allowed, shallbe bedetermined determinedafterafterthe thehearing hearingthat that he he or or she she is 3 disqualified, the disqualified, the action action or or proceeding proceedingshall shall be beheard heard and and determined determined by by another another Judge 4 of the Superior ofthe Court who Superior Court who is is not not disqualified. disqualified.Such Suchother otherJudge Judge shall shall be be assigned assigned in in the same manner as as the theJudge Judgewho whowas was disqualified disqualified was assigned to hear the the case case initially. initially. 5 6 See 7 G.C.A. G.C.A. §§ 6107. 6107. 6 7 7 II. The Objection is is procedurally procedurally defective, defective, because because it was not not timely timely filed at at the the earliest earliest 8 8 practicable opportunitynor practicable opportunity norprior prior to to any hearing hearing of of factual factual issues issues before before Judge Judge 9 9 Tolentino. Having Tolentino. Having failed failed to to timely timely file their their Objection, the the OAG OAG has has waived waived its its right right to

10 10 object.

11 11 The Court will will first first address address the procedural procedural issue issue of of whether whether the theOAG's OAG's Obj action was timely Objection

12 filed. 12 filed.Judge JudgeTolentino Tolentinoinitially initiallyraised raisedthe theissue oftimeliness, issueof timeliness,stating stating "that "that neither neither Mr. Moylan Moylan nor nor the 13 Office 13 Officeofofthe theAttorney AttorneyGeneral Generalhad hadever everchallenged orobjected challengedor objectedto tome mepresiding presiding over overthis this case case until until 14 14 the instant instantStatement StatementofofObjection ObjectionandandMotion Motiontotodisqualify." disqualify." See Answer Answer at at,119 (Jul. 29, 9 (Jul. 29, 2024). 15 15 Where a , Where judge neglects a judge neglects or or fails fails to to disclose disclosehis hisdisqualification disqualificationmandated mandated under under§ 6105, 6105, §§ 6107 6107 16 16 17 provides rovidesthat that "any "anyparty partytotosuch suchaction actionor orproceeding proceedingwho whohas hasappeared appeared therein therein may may present present to the the 17 18 court 18 courtand and file filewith withthe theclerk clerkaawritten writtenstatement objecting to statement objecting to the the hearing hearing of ofsuch matter or such matter or any anytrial trial of of

19 19 any any issue issue of offact factororlaw lawininsuch suchaction actionororproceeding proceedingbefore beforesuch suchJustice Justice or orJudge, Judge, and and setting forth 20 hefact 20 the factor orfacts factsconstituting constitutingthe the ground ofthe ground of the disqualification disqualificationofofsuch suchJustice Justice or or Judge. Judge. Copies of ofsuch such 21 rittenstatement Z; written statementshall shallforthwith forthwithbe beserved servedby thepresenting bythe presentingparty partyon oneach each party, party, or or his his or or her attorney, 22 hohas 23 who hasappeared appeared in in the the action action or orproceeding andon proceedingand onthe theJustice Justice or or Judge Judge alleged allegedin insuch such statement statement to 23 24 disqualified." See 7 24 bee disqualified." G.C.A. §§ 6107. 7 G.C.A. 6107.

25 Importantly, §§ 6107 Importantly, 6107 mandates that "the mandates that "the statement statement of of a a party objecting to party objecting Justice or the Justice to the or Judge Judge 26 on the ground of his or her disqualification shall be presented at the earliest practicable opportunity on the ground of his or her disqualification shall be presented at the earliest practicable opportunity 27 after ifter his or or her her appearance appearance and and discovery discovery of ofthe the facts facts constituting constituting the the ground of ofthe the Justiee's Justice's or 28 ]ua'ge's udge's disqualgication, disqualification, and and in in any event before before the commencement commencementof ofthe re hearing nearing of of any issue of of fact fact

Decision Decision and and Order Denying the Order Denying theOAG's OAG's Statement ofObjection Statement of Objection77G.C.A. G.C.A.§§6107 6107&&Motion Motionto toDisqualify Disqualify CM0363-22,People People of ofGuam Guam v. v, Ugochukwu Ugochukwu Enyinnaya Akoma Aroma Page Page 6 of12 1l in inthe the action action or or proceeding before before such such Justice Justice or or Judge." Judge." Id. (emphasis emphasis added). The Guam added). The Guam Supreme Supreme 2 Court 2 Court has has confirmed confirmed that that statements statements of objection objection shall shall "be "bepresented presented at at the the earliest earliest practicable practicable 3 opportunity after.' after .. discovery discovery of ofthe the facts facts constituting constituting the the ground groundfor for disqualification." Van Dox dlsqualllicatlon." See Van Dox 4 v.. Super Ct., 2008 2008 Guam Guam 771144. ,r 44. 5 "Aparty's "A party'sfailure failuretotocomply complywith withany anyofof these theserequirements requirementsconstitutes constitutes sufficient sufficient grounds grounds to 6 strike or 7 strike or disregard disregard the the statement statement of of objection." objection." See People People v. v. Johnny, Johnny, 2006 Guam 10 1] 11. 11. Thus, Thus, ,r 8 "with "withrespect respecttotothe thestatutory statutory provision provisionrequiring requiringthat that disqualification disqualificationbe beurged urgedat at the the 'earliest earliest practical

9 opportunity] 9 opportunity,' the the intention intention is is 'clear 'clear thatfailure that failure toto comply comply with with the the provision provision constitutes constitutes a waiver. a n waiver."' 10 See Van Dox Dox v.v. Super Ct., 2008 Guam Guam 77,r1[ 44 44 (quoting Caminetti v.v.Pac. (quoting Caminetti Pac.Mut. Mut.Ins. Ins.Co. Co.of offal., Cal., 139 139 11 .2d 930, 12 P.2d 930, 933 933 (Cal. (Cal. 1943) 1943) (emphasis (emphasis added)). added)). The TheGuam GuamSupreme Supreme Court Courtapplied appliedthis this"si1ence-as- "silence-as- 12 waiver rule" rule" in San San Union, Union, Inc. Inc. v. v. Arnold, Arnold, "to avoid the possibility of 'lying the possibility 'lying in in wake, wake, raising raising the the 13

14 14 recusal ecusal issue issue only after after learning learning the the court's ruling ruling on on the the merits."' See San merits."' San Union, Inc. v. Union, Inc. v. Arnold,

15 2017 15 017 Guam Guam 10 ,r 10 fl 27 (quoting Phillipe Phillips v. v. Amoco Amoco Oil Co., 799 799 F.2d 1464, (nthh Cir. 1986). 1472 (11t 1464, 1472 16 16 However, aa finding finding of oftimeliness timeliness "should "should be be 'construed 'construed liberally' to to promote promote justice." See 17 17 Van Dox Van Dox v.v. Super Super Cr., Ct., 2008 2008 Guam 7 1145 ,r 45 (quoting Eagle Mains. Maint. & Supply Supply Co. Co. v. v. Super. Super. Cr., Ct., 16 16 18 18 Cal.Rptr. 745, 19 Ca1.Rptr. 745, 747 (Dist.Ct.App. (Dist.Ct.App. 1961)). 1961)).AAtimely timelystatement statementofofobjection objectionisismade made "prior "priortoto any any hearing 19 20 eforethe 20 before thechallenged challenged judge judge in in the Matter." Id. at 1146. the matter." ,r 46.

21 In his Answer, Judge Tolentino raised In raised the issue issue of of timeliness, timeliness, stating stating "that "that neither neitherMr. Mr. Moylan Moylan

22 nor 22 orthe the Office Officeofofthe theAttorney AttorneyGeneral Generalhad everchallenged hadever challengedor orobjected objected to to me me presiding presiding over over this this case case 23 23 until the instant ntil the instantStatement Statementof ofObjection Objectionand andMotion todisqualify." Motionto disqualify." See Answer Answer at at 119 (Jul. 29, 9 (Jul. ,r 29, 2024). 2024). 24 udgeTolentino jg Judge Tolentinowas wasassigned assigned to to his his matter matter on December 13, on December 13, 2022, 2022, more more than one and than one and aa half half (1.5) (1.5) 25 26 years ears before the the OAG OAG filed filed their their Objection Objection on on July July 19, 19, 2024. 2024. Indeed, the OAG had Indeed, the had several several 26 27 opportunities opportunitiesto toraise raise the the issue JudgeTolentino's issue upon Judge Tolentino's assignment and throughout assignment and throughoutthe thefollowing following year.

Decision Decision and Order Denying and Order Denying the the OAG' OAG'ss Statement of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0363-22, People of People of Guam v. Ugochukwu Enyinnaya Aroma Enyinnaya Akoma Page 7 of12 of 12 1 Timeliness also also weighs heavily against against the OAG OAG considering considering the the issue ofdisqualification issue of disqualification

2 based ased on shared shared familial relationships involving Attorney familial relationships Attorney General General Moylan's Moylan'sadult adultchildren/Judge children/Judge 3 olentino's adult Tolentino's adult step-children and andAttorney Attorney General GeneralMoylan's Moylan's ex-wife/Judge ex-wife/JudgeTolentino's Tolentino's wife was 4 addressed atataameeting addressed meetingin in December December2022. meeting, Attorney General 2022. In that meeting, General Moylan Moylan agreed agreed that that 5 6 there here was was no longer any conflict of of interest adversely affect Judge interest which would adversely JudgeTolentino's Tolentino's ability to 6 7 preside reside over cases cases in which which Attorney Attorney General General Moylan, Moylan, as as the the Attorney Attorney General General of of Guam, Guam, was was

·nvolved. Id. at ,r,r 8 involved. W 6-7. 6-7. The TheOAG OAGstuck stuckby bythis position for this position forover overone oneand and aa half half (1 .5) years, (1.5) years, failing failing to

9 file 9 fileany anyobjection objectionbased based on on familial ties until familial ties until July 2024. Having failed July 2024. failed to to timely timely raise raise the the objection, 10 10 the OAG OAG has has waived waived its its current current disqualification disqualification request. See Van Dax Dox v. v. Super SuperCr., Ct.,2008 2008Guam Guam77,i 11 l11l 12 44. 12 13 The timing of ofthe the OAG's OAG'sObjection Objectionisisfurther furthersuspect suspectbecause because itit comes comes after after several several hearings hearings 13 14 before eforeJudge Judge Tolentino, Tolentino, including including aa week-long jury jury trial trial that that resulted in aamistrial. resulted in mistrial. This is precisely 14 15 the hecircumstance circumstancethat that the the Guam Supreme Court Courtprohibited. prohibited. SeeSan San Union, Inc. v. Arnold, Arnold, 2017 Guam 15

16 10 ,r 27 ("to avoid the possibility of 'lying in wake, raising the recusal issue only after learning 16 10 ii 27 ("to avoid the possibility of 'lying in wake, raising the recusal issue only after learning the

17 court's ruling on the merits."') (internal citations omitted). Rather than present the grounds for 17 court's ruling on the merits."') (internal citations omitted). Rather than present the grounds 18 disqualification at the earliest practicable opportunity, the People waited one and and aahalf half (1.5) (l .5) 18 disqualification at the earliest practicable opportunity, the People waited for over 19 years, until a jury trial trial had finished, finished, before before raising raising their their Objection. Objection. Therefore, Therefore, the the Court Court finds finds the 19 ears, until a the 20 OAG's Objection is procedurally defective and effectively waived. 20 OAG's Objection is procedurally and effectively

21 III. III. The The Objection Objection is is substantially substantiallydefective defective because: because: 21 a. Jude Jude Tolentino Tolentino isisnot notcompelled compelled totodisclose disclose his his personal personal connection to Attorney connection to 22 General General Moylan Moylan under under the the clear clear language of 77 G.C.A. language of G.C.A. §§ §§6105 6105 and and 6106. 6106. 23 The only The only circumstance in §§ 6105 circumstance in 6105 requiring requiring disqualification (absent aa waiver disqualification (absent waiver following following 24

25 disclosure) 25 disclosure) involving involvingthe the judge's judge's spouse spouse is is§§ 6l05(b)(5) whenthe 6105(b)(5)when thespouse spouse is is any of: (A) any of: (A)aaparty party to to the the

26 proceeding, roceeding, or or an an officer, officer, director, director, or or trustee trustee of a party; party, (B) acting acting as a lawyer lawyer in the the proceeding; proceeding;(C) (C) 27 27 known own by by the the Judge Judge to to have have an an interest interest that that could be substantially affected by substantially affected by the the outcome outcome of the 28

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0363-22, People of People of Guam v. v. Ugochukwu Enyinnaya Aroma Akoma Page Page 8 of12 of 12 11 proceeding, roceeding;oror(D) (D)isistotothe theJudge's Judge's knowledge knowledgelikely likelytotobe beaamaterial material witness witness in in the the proceeding. See

2 77 G.C.A. G.C.A. §§ 6l05(b)(5). 6105(b)(5). 3 Tolentino's spouse Judge Tolentino's spouse isis not not aa party party to to the the proceeding, proceeding, or or an an officer, officer, director, director, or or trustee of 4 a party. She is not acting as a lawyer party. She lawyer in in the the proceeding, proceeding, nor is is she she known known by Judge Tolentino to have 5 aninterest 6 an interest that could be substantially affected by that could by the outcome of the the proceeding. She is proceeding. She is not, to Judge 6 material witness 77 Tolentino's knowledge, likely to be a material witness in in the the proceeding. Therefore, none of proceeding. Therefore, of these

88 circumstances exist to to require require that that Judge Judge Tolentino Tolentino invoke invoke the mandatory disclosure requirements of of

99 §6106. § 6106. 10 10 The circumstances circumstances of of the the OAG's objection differ OAG's objection differnotably notablyfrom fromthethecircumstances circumstances in People People v. v. 11 11 antos, where 12 Santos, the Guam where the Guam Supreme Supreme Court Court found found the the provisions provisionsofof §§ 6l05(b) 6105(b) required required aa judge's judge's 12 13 disqualification (absent 13 disqualification (absent aa waiver waiver following followingdisclosure) disclosure)when whenthat thatjudge judgewas wasrelated related within within the the third third

14 degree 14 degree to to the the Chief Chief Prosecutor Prosecutor of of the the OAG. People v. OAG. See People v. Santos, Santos, 2018 Guam 12 12,1]8.8. The Guam Guam

15 Supreme 15 SupremeCourt Courtconcluded concludedthat thatthe the Chief ChiefProsecutor Prosecutor was was acting acting as as a lawyer in the proceeding, even if 16 16 they hey did did not notpersonally personally participate participate in the the case, case, due due toto their theirsupervisory supervisory responsibility responsibility over the 17 12 performance erformance of of the the attorney attorney in the proceeding. Id. at at,1113. 13. This same logic cannot be extended to 18 19 Attorney ttomey General General Moylan, Moylan, despite despite any any supervisory supervisory involvement he may may have have in in this this case, case, because 19 20 ttomey General 20 Attorney General Moylan is not related related within within the third third degree degree to to Judge Judge Tolentino. Therefore, 7 Tolentino. Therefore,

21 21 G.C.A. G.C.A. §§ 6l05(b) 6105(b) does does not not require require Judge Judge Tolentino's Tolentino's disqualification disqualification here. here. 22 b. Applying Applying the the "appearance "appearance of of impropriety" impropriety" standard, standard, Judge Judge Tolentino Tolentino was was not not 23 required required to to disclose under77G.C.A. disclose under G.C.A. §§6105(a). 24 24 Section 6105(a) requires requires that "any "any judge judge shall disqualify himself himself or herself in any proceeding proceeding 25 in·n which 25 whichhis his or orher herimpartiality impartiality might might reasonably questioned". See 77 G.C.A. reasonably be questioned". G.C.A. §§ 6105(a). 6l05(a). When When 26 considering 26 consideringdisqualification disqualification under under§§ 6105(a), 6105(a), "what "what matters matters is is not not 'actual 'actual bias," but 'the bias,' but 'the appearance appearance 27 of 27 of bia bias."' See Van Dox v. Super Cr., Ct., 2008 Guam Guam 77, 1132 (citing Dizon v. Super. Cr. (People), 1998 Ct. (People), 1998 28 Guam 28 Guam33, 1110 n.3). n.3). The The appearance appearance of of bias is judged from the standard standard of a "reasonable person" person" who

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22, People of People of Guam v. v. Ugochukwu Enyinnaya Aroma Enyinnaya Akoma Page 9 of1212 1 1 knows ows all allthe thefacts, facts,and andunderstands understands the "contents of ofthe thejurisdictions, jurisdictions, parties, parties, and and controversies controversies 2 involved," including such ·nvolved," including such "realities "realities of the the Guam judicial system" system" as the the relatively small small number of number of 3 lawyers awyers in inthe the Guam and"the Guam bar and "thenature natureof ofGuam Guamfamilies." families." Id. ,r 32 (citation Q1132 (citation omitted) omitted). 4 The Michigan Michigan Supreme Supreme Court Court held that "the appearance of impropriety" standard appearance of standard applies only 5 where herethere thereisisno no clear clearrule ruleor orcanon canon pertaining pertaining to to the the subject subject matter. See Adair v. State State of ofMicnigan Michigan 6 6 Dept. ept. of ofEducation, Education, 474 Mich. 1027, 1027, 1039 (Jan.31, 1039 (Jan. 31,2006). 2006). The Court reasoned reasoned "specific "specific court court rules rules 7 or or canons canons that that pertain pertain to to aa subject subject and and that that delineate delineate what what is is permitted permitted and and prohibited prohibited judicial judicial 8 conduct... conduct. . would wouldbe beof oflittle littleconsequence consequenceififthey theycould couldalways alwaysbe becountermanded the vagaries countermanded by the vagaries of of

9 an an 'appearance of impropriety' 'appearance of impropriety' standard". standard". Id. Q atat 1039. 1039. 10 10 In instantcase, In this instant case,the thenon-disclosure non-disclosureofofthe therelationship relationshipcomplained complained oby the ofby theOAG OAG is covered covered

11 11 byy §§6105(5), 6105(5), which whichspecifically specificallylays laysout outwhen when aa judge's judge'srelationship relationship to to aa lawyer lawyer in in the the proceeding proceeding 12 12 warrants arrants that judge's disqualification. Importantly, that judge's Importantly,by bylisting listingthe theprohibited prohibited relationships relationships between between a 13 13 lawyer awyerand and the the judge, judge, §§ 6105(5) 6105(5) also also states states which which relationships are permitted. relationships are permitted. Section Section 6105(5) 6105(5) lists lists 14 14 several several prohibited prohibited relationships, relationships, and being the and being the ex-partner ex-partner of of the the judge's judge's spouse spouse is not one of of them. them. 15 15 Because ecause §§6105(5) 6105(5)delineates delineates what what is is and and isn't isn't aa prohibited prohibited relationship, relationship, the the OAG OAGcannot cannot negate negate that that 16 16 rule le by by invoking invokingthe the "appearance "appearance of ofimpropriety" impropriety"standard. standard. 17 17 c. c. Under Under an an"objectively "objectivelyreasonable reasonable person" person" standard, standard, Judge Judge Tolentino Tolentino was not not 18 18 required required to to disqualify disqualify himself himselfin in this this ease. case. 19 19 Even Even ifif §§6l05(a) 6105(a)was waspermitted permittedtotobypass bypassthe theclear clearrule rulepertaining pertaining to to this this challenged challenged 20 relationship, elationship, no no objectively objectivelyreasonable reasonable person person would would question question Judge Tolentino's impartiality here. Judge Tolentino's 21 The American Bar Association ("ABA") ("ABA") acknowledged acknowledgedthat that"judges "judgesare areordinarily ordinarilyin inthe the best best 22 position ositionto toassess assess whether whether their their impartiality impartiality might might reasonably reasonably be be questioned questioned when lawyers or or parties parties 23 with ithwhom whom they they have have relationships ... appear before them." appear before them." See ABA ABAFormal FormalOp. Op. 488 488 (Sep. 5, 5, 2019). 24 The heABA ABAalso alsonotes notesthat that"in "insmaller smallercommunities communitiesand andrelatively relativelysparsely-populated sparsely-populated districts, districts, judges 25 may ay have have social social and and personal personal contacts contacts with with lawyers lawyers and and parties parties that that are are unavoidable. unavoidable. In that that 26 circumstance, too strict circumstance, too strict aa disqualyication disqualification standard standard would be impractical to to enforce enforce and and would would 27 potentially disruptthe otentially disrupt theadministration administrationofof justice."Id. justice." Q (emphasis added). The ABA also (emphasis added). also recognizes recognizes 28 that hat over over time time relationships relationships change "or may have ended change "or ended sufficiently far far in in the the past past that that it is not a

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22, People People of ofGuam v. v. Ugochukwu Enyinnaya Enyinnaya Akoma Aroma Page 10 of 12 11 current current concern when whenviewed viewedobjectively." objectively." Id. "Finally, "Finally,judges judges must must avoid avoid disqualifying themselves themselves

oo quickly 2 too quicklyor ortoo toooften oftenlest lestlitigants beencouraged litigantsbe encouraged to to use use disqualification disqualification motions motions as as a means of means of 3 judge-shopping, ·udge-shopping, or orother otherjudges judges in in the the same same court ... become overburdened." overburdened." Id. 4 Adopting the Adopting the recommendations recommendations of the ABA ABA in inits itsFormal FormalOpinion Opinion488, 488, based based on on the obi ective objective 5 reasonable easonable person standard, andconsidering standard, and consideringthe theAnswer Answerfiled filed by Judge Judge Tolentino and and the judicial 6 community community and and context context in which which the the disqualification disqualification is sought, the Court sought, the Court makes the following makes the 7 findings: findings:

8 • The circumstances previously requiring circumstances previously requiring Judge JudgeTolentino Tolentino to to disqualify disqualify himself have

9 changed and, by changed and, by Attorney Attorney General General Moylan's Moylan's own own admission admission during during the the meeting meeting 10 10 between between himself, his staff, Judge Tolentino, and the court and the courtstaff, staff, any anyconflict conflict relating to

11 the familial association between between Judge JudgeTolentino Tolentino and andAttorney Attorney General General Moylan Moylan "no

12 12 Answer at ,r existed." See Answer longer existed." 1]77(Jul. (Jul.29, 29,2024). 2024). Therefore, Therefore, Judge Tolentino is not Judge Tolentino 13 13 required to disqualify required to disqualify himself himself under§ under § 6105(a). 6l05(a)

14 14 • The relationship between Attorney Attorney General General Moylan Moylanand and Mrs. Mrs. Tolentino Tolentinoended endedon onJune June 15 15 13, 1997. Id. at ,r1114. 13, 1997. Therefore, the 14. Therefore, the relationship relationship has ended ended sufficiently sufficiently far far in in the the past past 16 16 that itit is not not aa current currentconcern concernwhen whenviewed viewedobjectively. objectively.

17 17 • Attorney General Moylan Moylan and and Mrs. Tolentino's Tolentino's children children are are now grown grown adults living adults living 18 18 .on their own, which which poses another significant change in relationships. ,r,r 7, 14. relationships. Id. at11117, 14. 19 19 • In In Guam's small legal community community and and with a trial trial court bench bench consisting consistingof of only four 20 (4) (4) dedicated dedicated criminal criminal court court dockets, requiring Judge Tolentino, who is one of the four Judge Tolentino, 21 (4) (4) judges judges assigned to the assigned to criminal docket, the criminal docket, to to disqualify disqualify himself himself pursuant pursuantto§ to §6105(a) 6l05(a) 22 from all all cases cases in in which which Attorney Attorney General General Moylan Moylan represents the People of represents the of Guam Guam 23 would: (a) be impractical to enforce, (b) negatively negativelyimpact impact the the efficient efficientadministration administration 24 of ofjustice, justice, and and (c) (c)lead leadtotojudge-shopping judge-shoppingand/or and/or overburden overburden the judges in in the the same same 25 court. court. 26 CONCLUSION 27 27 For For the the reasons reasons stated above, the Court DENIES the OAG's OAG's Objection. Objection. Judge Judge Tolentino Tolentino is 28 not 28 notdisqualified disqualifiedunder under 77 G.C.A. G.C.A.§§ §§6105(a) 6105(a)oror(b) frompresiding (b)from presidingover overthis thiscase caseon onthe thegrounds grounds that that

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement Statement ofof Objection Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0363-22,People of Guam v. Ugochukwu People of Guam v. Ugochukwu Enyinnaya Akoma Page 11 of12 1 1 he has hasaafamilial familial relationship relationshipto toAttorney Attorney General Moylan Moylan based uponJudge JudgeTolentino's Tolentino's relationships

2 with withAttorney AttorneyGeneral General Moylan's Moylan'sbiological biologicalchildren children and and his former former wife. wife. Even Even ififthere there were were such such 3 grounds for disclosure or disqualification, which grounds for which this this Court Court has has found found there there are are none, the untimely 4 Objection Objectiontiled filedby bythe theOAG OAGconstitutes constitutesaawaiver waiverofofany anysuch such disqualifying factor. factor.

5 August 29, 29, 2024 2024 6 IT IS IS SO SO ORDERED ORDEREDthis this-----~....,., 7

l0 10 HONORABLE ALBERTO ALBERT() C. c. LAMORENA, LAMORENA, III Presiding Judge, Superior Superior Court Court of Guam Guam l11l

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Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0363-22, People People of ofGuam v. Ugochukwu Enyinnaya AkomaAroma Page 12 of 12