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2321* we 29 PP? 1=56 20:~:U:.q~;R ::~=R:6 § ? §'?= ,QL§_§" I ;-1 OF QJJQ8X§% GUAM J IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM
PEOPLE OF GUAM GUAM CRIMINAL CRIMINALCASE CASENO:NO:cF0411_24 CF0411-24 Police Report Report No. No. 21-18551 21-18551 vs. DECISION DECISION AND ORDER BRIAN BRIAN JAKE CEPEDA CEPEDA ALANO, ALANO, DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF DOB: DOB:12/20/1996 12/20/1996 OBJECTION Defendant.
This matter is before matter is before the the Honorable Dana A. Honorable Dana A. Gutierrez Gutierrez for the the limited limited purpose purpose of
reviewing the Office of the Attorney General's the Attorney General's (the "OAG") "OAG") Statement Statement of Objection Objection
("Objection"), in which which the the OAG OAG objects objects to to the the Honorable Honorable Alberto Alberto E. Tolentino Tolentino ("Judge ("Judge
Tolentino") presiding presiding over over the the above-captioned above-captioned matter matter due due to his his relationship relationship with Attorney
General Douglas Moylan_ General Douglas Moylan ("Moylan"). ("Moylan"). Upon consideration of the consideration of the arguments and applicable
Guam law, the Court hereby DENIES the OAG's Objection. For For this this reason, Judge Tolentino
may continue to preside over over this matter. matter.
FACTUAL BACKGROUND
The following facts facts are are undisputed: DorisL.G. undisputed: Doris L.G. Tolentino Tolentino ("Doris") ("Doris") and and Moylan were
manned andhad married and hadtwo twochildren-Brandon children-Brandon(born (bam 1990) 1990) and and Angela Angela (born (bam 1992) (the "Moylan 1992) (the
Children"), Children"); Doris Dorisand and Moylan Moylandivorced divorcedinin1997, 1997;Judge Judge Tolentino Tolentinoand and Doris Dorismarried married in in 2005 2005 and and
remain married man*iedtoday; today,as assuch, such,Judge JudgeTolentino Tolentinoisis the the stepfather stepfatherof of the the Moylan Children. Children. See
Answer Answer to Statement of Objection Statement of Objection ("Answer") ,r,r14-15 ("Answer") atatW 14-15 (July (July 31, 31, 2024).
As As recently recently as as October October 2022, 2022, Judge Tolentino sue Judge Tolentino sua sponge sponte disqualified himself Hom from cases cases ii*
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04II-24; CF0411-24; People of ofGuam v. Brian Brian Jake Cepeda Alano Alano <4 in which Moylan Moylan appeared before him as a\ private counsel because of of his relationship with Moylan
as the stepfather of the the Moylan Children. See Id. Id at ,r at 'H 33;; see also Statement Statement of Obj Objection action
("Objection") at Ex. 29, 2024) Ex. A-MM (July 29, 2024) (providing (providing examples of Judge Tolentino's examples of
disqualifications in cases involving Moylan from 2014 to 2022).
In 2022, Moylan was elected Attorney General of of Guam and was scheduled to take office
January 2023. in January 2023. Answer at ,r 5.5. InIn December at 11 December 2022, 2022, Judge Judge Tolentino Tolentino and MOylan Moylan met with
various other staff various other staff members members of the the OAG and and the the Superior Superior Court Court of Guam Guam to to discuss discuss Judge Judge
Tolentino's previous Tolentino's previous disqualification disqualification in Moylan's Moylan's cases. ,r According to Judge Tolentino cases. Id. atat116.
undisputed by and undisputed by the Moylan "assured the OAG, Moylan "assured [Judge [Judge Tolentino] olentino] and and the the other members in
attendance that he attendance that he perceived perceived no no conflict conflict in in his election election as the the Attorney Attorney General General and the the
prosecution of criminal criminal cases cases before before [Judge [Judge Tolentino]." Tolentino]." Id. ,r Id at1]7.
During and after January 2023, Judge Judge Tolentino presided over over many many cases involving the
without objection OAG without objection from from the the OAG. OAG. See See Answer ,r 44 (stating Answeratat1] (stating that that Judge Judge Tolentino's Tolentino's docket
consists mostly of of criminal matters brought by by the the People People of Guam through the OAG).
However, beginning in However, beginning in April April of of 2024, 2024, three three Superior Superior Court Court of Guam Guam Judges Judges issued issued
Decisions and Decisions and Orders Orders addressing addressing whether whether Judge Judge Tolentino Tolentino was disqualified disqualified from from matters matters
involving Moylan involving Moylan due to his relationship with Moylan and the Moylan Children.
First, on April 5, 2024, 2024, the Honorable Honorable Joseph n. Camacho, presiding as Judge Pro N. Camacho,
Tempore, Tempore, issued a Decision and Order in People People of Guam Guam v.v. Nakita Nikita TT Aguon, analyzing whether
Judge Tolentino Judge Tolentino was was disqualified from cases disqualified from involving Moylan cases involving Moylan pursuant to 7 pursuant to 7 GCA GCA §§ 6105(a), 6105(a),
which states tes that tha t a "Judge "Judge shallll disqua lify himself disqualify himself in in any a ny proceeding oceeding in in wh,ich which his his or her her
impartiality might reasonably be questioned" unless both parties agree to to have have the the judge judge continue
Aguon, CM0145-21 to sit in the proceedings. Aguon, at 7 CM0145-21 at 7 (Super. Ct. Guam (Super. Ct. Guam Ap~l April 5, 5, 2024); 2024), 77 GCA GCA §§
2 DECISION AND ORDER DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF OF OBJECTION CF04] I-24; People CF0411-24; ofGuam Peopleof Guam v. v. Brian Brian Jake Jake Cepeda Cepeda Alano Alana
6l05(a). 6105(a). Judge Camacho Camacho found found that that "a reasonable reasonable person person could question whether whether Judge
Tolentino could be impartial impartial in in aa case case proceeding proceeding at atthe thedirection directionof of[AG] [AG] Moylan" due due to to their their
continuing relationships relationships with the the Moylan Children. Id. at 8. Thus, the court Moylan Children. court held that, "[a]t "[a]t a
minimum, it would would have have been been prudent for Judge prudent for Tolentino to disclose Judge Tolentino disclose these these relationships to the
parties." Id. parties." Id
Next, Next, on on June June 4, 2024, the Honorable 2024, the Honorable Elyze Elyse M. M. Iriarte Iriarte issued issued aa Decision Decision and and Order Order as as the
recusal judge recusal People of Guam judge in People Guam v. v. Carina Corina Jamel Jamel Taitingfong Taitingfong, et et al., al., CF0024-24 (Super. (Super. Ct.
June 4, Guam June 2024). In that case, 4, 2024). case, the the defendant defendant objected objected to to Judge Judge Tolentino Tolentino presiding presiding over the
case, and Judge Judge Iriarte Iriarte held held that that Judge JudgeTolentino Tolentino was disqualified from from the the matter. Taitingfong, matter. Tai g
CF0024-24 CF0024-24 at at 10. 10. Judge Judge Iriarte Iriarte reasoned pursuant to reasoned that pursuant to 7 GCA §§ 6105(a), 6105(a), aa reasonable reasonable question
exists regarding regarding Judge Judge Tolentino's impartiality toward Tolentino's impartiality toward Moylan Moylandue due to totheir theirmutual mutual relationship relationship
with with Judge Tolentin0's stepchildren Judge Tolentino's stepchildren and and due due to the fact that Judge Judge Tolentino Tolentino had previously sue sua
sponte disqualified sponge disqualified himself himself from from all all matters matters involving involving Moylan Moylan while was in while Moylan was in private private s1
at 5. Further, Judge practice. Id. at Judge Iriarte Matte determined that the the pro per procedure proper procedure would would have have been been for
Judge Tolentino Judge Tolentino to sit only in in matters matters where both patties had waived parties had waived their right to object object to his his
presiding case. Id. atat 8.8. Because presiding over the case. Because the the defendant defendant objected and clearly did not waive waive that that
right, Judge thatJudge Judge Iriarte held that JudgeTolentino Tolentinowas was disqualified disqualified from sitting onthe the case. Id at case. Id. at 8-9.
on June Lastly, on June 12, 2024, 2024, the the Honorable Honorable Maria Maria T. Cenzon Cenzon issued issued aa Decision Decision and and Order Order
Denying the OAG's Statement the. OAG's Statement of of Objection Objection in People People of ofGuam Guam v. v. Richard Richard Y Ybanez, Ybanez, CF0447-
June 12, 23 (Super. Ct. Guam June 12, 2024). 2024). In In that thatcase, case,on onMay May 1, 1,2024, 2024,the theOAG OAG objected for the first
time to to Judge Judge Tolentino presiding presiding over over the the matter matter due due to to his his aforementioned aforementioned relationship relationship with
Moylan Moylan and and the Moylan Moylan Children. Children. Ybanez, Ybanez, CF0447-23 at at 5-6. 5-6. Sitting Sitting as as the the recusal recusal judge, Judge Judge
Cenzon found that Judge Judge Tolentino Tolentino is not compelled to disclose disclose his his relationship relationship with Moylan Moylan
3 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; Peopleof ofGuam Guam v. v. Brian BrianJake Jake Cepeda Alana Cepeda Alano
under 77 GCA under GCA §§ 6105(a) 6105(a) or or any any other other section section of ofthe the recusal recusal statute. statute. Id. Id. at at 12-17. 12-17.
Cenzon provided Judge Cenzon provided several several reasons justifying Judge Judge Tolentino's omission, including
(1) that Moylan admitted during the meeting with Judge Judge Tolentino Tolentino and and other other staff staff members that that
he per perceived no continuing ceived no continuing conflict conflict r requiring Judge TTolentino's equir ing Judge disqualification; olentino's disqua (2) tha lifica tion, (2) that
Moylan's and Moylan's and .Doris's relationship, relationship, which ended in in 1997, ended sufficiently 1997, ended sufficiently far far in in the the past past as to
not currently be a concern when viewed viewed obi objectively; ectively, (3) that the the Moylan Moylan Children, who are Judge
Tolentino's stepchildren, Tolentino's stepchildren, are are all adults living on their own; own, and (4) (4) in the the small legal community
of Guam, for Judge Tolentino to disqualify himself in all cases of cases involving Moylan would be "(a)
impractical to impractical to enforce, (b) negatively impact the efficient administration of of justice, and (c) lead
to judge-shopping judge-shopping and/or overburden other judges judges in the same court." court." Id. at 17. Id at 17.
Finally, on July 18, 2024, 2024, the the Supreme Supreme Court of Guam 1ssued issued an Opinion in In re Arthur
San Agustin. U San Agustin·v.Superior SuperiorCourt CourtofofGuam, al., 2024 Guam 2, disqualifying Judge Tolentino in Guam, etet al.,
that matter, matter, but but on grounds grounds that are are unrelated unrelated to his relationship relationship with Moylan. Moylan. The Supreme Supreme
Guam noted Courtt of Gua noted tha thatt they they fir first issued their st issued .their Or Order disqualifying der disqua Judge TTolentino lifying Judge olentino on
2023, but December 5, 2023, but stated stated that that their their July 18, 2024 Opinion 18, 2024 Opinion supersedes supersedes that that Order. Order. San San
Agustin, 2024 Guam 2 at Agustin, ,r 8. The at 118. The San Agustin Court noted that Judge Tolentino had previously
himself in that matter because "he, his wife, and his chamber clerk have or had close disqualified himself
[a real party in interest], concluding this could create relationships with San Agustin and Nadeau, [a
a conflict." Id. ,r 4.4. The Id atat 1] The matter matter was was then then reassigned reassigned to to the the Honorable Presiding Judge Alberto
III, and the defendant objected to Presiding C. Lamorena III, Presiding Judge Lamorena presiding over the
matter. Id. matter. ,r 5.5. The at 'll Id at The issue issue of of Presiding Presiding Judge Judge Lamorena's recusal was then assigned to Judge
Tolentino, and Tolentino, and Judge Tolentino Tolentino issued a Decision and and Order Order concluding concluding that that Presiding Presiding Judge
Lamorena was not disqualified. Id atat 11 disqualified. Id. ,r 6.6. Ultimately, Ultimately, the the Supreme Supreme Court Court of Guam held that that
4 ¢ DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] CF041]l-24; People"ofGuam People'ofGuam v. v. Brian BrianJake Jake Cepeda Cepeda Alano
because beca us e Judge udge Tolentino olent ino hadd disqualified qua lified himself hims elf in in the underlying he under lying matter, t er , he was aalso he wa ls
disqualified Hom disqualified from sitting asthe sittingas therecusal recusal judge judgeand, and, therefore, therefore, v`acated vacated his his decision decision and and disqualified disqualified
him from from the the matter ,r,r 440, entirely. Id aatt W matter entirely. 0 , 554. h e SSan 4 . TThe Agustin a n Ag ust clarified the proper Court clarified proper
when aa party procedure when party seeks seeks to to challenge challenge aa recusal recusal judge judge for for cause. ,r Id atat1134. cause. Id
PROCEDURAL BACKGROUND
The instant matter matter was was initiated initiated on on June 17, 2024, June 17, 2024, when when the filed an the OAG filed an Indictment Indictment
against Brian against Brian Jake Jake Cepeda Cepeda Alano ("Defendant") for Possession Alano ("Defendant") Possession of a Schedule Schedule IIII Controlled Controlled rd Substance (As Substance (As aa 3rd Degree Degree Felony). Felony). On On July 25, 25, 2024, 2024, the the matter matter was was assigned assigned to to Judge Judge
Tolentino.. Tolentino
July 29, On July 29, 2024, the OAG OAG filed filed their their Objection, Objection, stating stating that that "disqualification of Judge
Tolentino from Tolentino from this and any other other matter involving Moylan is required" required" due due to to their their familial familial
relationship. Objection relationship. Objection at at 7. 7. The The OAG argues that "[a] reasonable reasonable person would presume presume that that
Judge dge TTolentino's i ho' s personal er s ona l relationship r el a t i ons hi pwith wi t h [AG] [ AG ] Moylan M oyl a n and a nd his pprior ri yea years sspent p ent
disqualifying himself disqualifying himself from matters involving from any matters involving Moylan would would raise raise aa reasonable reasonable question question
about his impartiality about his impartiality and necessitateshis and necessitates hisdisqualification." disqualification."Id Id at 6.
The Court notes that the the OAG has filed filed numerous identical objections to Judge Tolentino
presiding over many criminal matters. 1However, many criminalmatters.1 However, the theCourt Courttakes takes judicial notice 2 of judicialnoticed of the the fact fact that,
1 1 This Court has This Court has been assigned assigned to tohear hearthe therecusal recusalof JudgeTolentino ofJudge Tolentinoin in several severalcases casesininwhich whichthe theOAG OAG has filed identical statements of objection, including, but not limited to, the following: People of Guam v. has tiled identical statements of objection, including, but not limited to, the following: People of Guam v. Pangelinan Reyes Peter Pangelinan Reyes Jr., CF0419-24 CF0419-24 (Super. (Super. Ct. Guam Aug. Aug. 5, 5, 2024), People of 2024); People ofGuam Guam v.v. Jamielynn Cabrera, CF0439-24 Pangelinan Cabrera, CF0439-24 (Super. (Super. Ct. Guam July 30, 30, 2024), 2024); and and People of of Guam Guam v.v. Ma Mark rk Anderson Paulino, CF0482-24 (Super. ro, CF0482-24 (Super. Ct. Guam July 30, 2024) July 30,
2 Guam Rules of Evidence ("GRE") Rule 201 governs judicial notice of of adjudicative facts. "A judicially noticed fact must be one not subject to reasonable disputedispute in that it is either (1) generally known within the territorial jurisdiction jurisdiction of the trial court or (2) capable of accurate and ready deten;nination determination by resort to sources whose accuracy cannot cannot reasonably reasonably bebe questioned." questioned." GRE GRE 201(b). 20l(b).
5 .P
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; PeopleofofGuam Guam v. v. Brian Brian Jake Jake Cepeda Alano Cepeda Alano
date, the to date, the OAG has not tiled OAG has filed objections objections in in all all of ofits itscases cases before before Judge Judge Tolentino, Tolentino, and and instead instead is . . . 3 proceeding in certain matters. 3
response to In response to the OAG's Objection, the OAG's Objection, Judge Judge Tolentino Tolentino issued issued his his Answer on on July July 31, 31,
2024, denying 2024, denying that that his his disqualification disqualification was was required requiredin in this thiscase. case.Answer at,r135. In support Answer at support of
his position, his position, Judge Judge Tolentino Tolentino cites cites to the meeting to the meeting that that he he and and Moylan Moylan had had regarding regarding their their
and the fact that Moylan potential conflict, and stated that he Moylan stated he perceived perceived IJ.O no disqualification. Id. at ,r at117.
Further, Judge Further, Judge Tolentino Tolentino states states that thatthe theMoylan Moylan Children have "reached majority and and adulthood adulthood
and have been residing at their their own own residences." residences." Id. Id
This This matter was assigned assigned to to this this Court on August 1, 1, 2024, for the limited purpose of of
Judge Tolentino's recusal. deciding Judge recusal. On August August 5, 5, 2024, 2024, the the Court Court issued issued an Order for for Further Further
Briefing, requiring the the OAG to explain their position on whether the OAG has objected to Judge
Tolentino presiding over cases cases "involving Moylan" at the the earliest practicable opportunity, opportunity, as
required by required by Title Title 7, Guam Code Annotated 7, Guam Annotated ("GCA"), Section 6107, ("GCA"), Section 6107, considering considering Moylan has
been in office office since since January January 2023. The Court Court permitted, but did not not require, require, the Defendant to
respond respond to the same question. question. On August AUgust 12, 2024, the OAG filed filed their their Response, Response, arguing arguing that
their objection their timely. 4 The objection was time1y.4 The Defendant Defendant filed filed a Response Response to Government's Government's Statement Statement of
Objection on Objection on August 12, 2024, August 12, 2024, stating stating that that (1) (1) the the factual factual claims claims put put forth forth in in the the OAG's
constitute aa disqualification; Objection do not constitute disqualification, (2) (2) the the Defendant Defendant waives waives any any conflict; conflict, and (3) the the
3 3 According to the Superior According Court of Superior Court of Guam's Weekly Calendar Calendar for for the the week week of ofAugust August 26,26, 2024, 2024, Judge Judge Tolentino continues continues toto have have aa full full calendar calendar ofof cases moving forward forward which which list list the the OAG OAGas as counsel. counsel. Judge Judge Tolentino remains Tolentino remains scheduled scheduled to to hear hear progress progress hearings, hearings, status hearings,further status hearings, father proceedings, proceedings, motion motion hearings, pre-trial conferences, hearings, pre-trial conferences,changechangeof of pleas, pleas, return return of of warrants, warrants, andand jury selections selections and and trials in in criminal mattersinvolving criminal matters involving the the OAG. OAG. The Superior Superior Court.of Guam's Guam's Weekly Weekly Calendar is posted Calendar is posted publicly on the the Judiciary Judiciary of ofGuam's Guam'swebsite, website,available availableat at https://www.guamcourts.org/Calendar/images/Weeldy- https://www.guamcourts.org/Calendar/images/Weekly- AET.pdf.
4 4 The OAG's Response did not raise any new arguments not stated in their their Objection. action.
6 DECISION AND ORDER DENYING_OAG'S DENYING.0AG'S STATEMENT STATEMENT OF OBJECTION OBJECTION CF041 I-24,' People of CF0411-24; ofGuam v. v. Brian Brian Jake Cepeda Alano Alano
OAG failed OAG failed totoobject objectatathe theearliest earliestpracticable practicable opportunity opportunity and and therefore therefore has has waived any any
-conflict. conflict.
DISCUSSION
7 GCA GCA §§.6105 provides the substantive substantive grounds grounds for for judicial judicial disqualification in Guam. 7
GCA GCA§§6105(a) 6105(a)states full: states in full:
shall disqualify himself Any Judge shall himself or herself in any proceeding in which his oror her impartiality might her impartiality might reasonably be questioned, but if, following complete disclosure to all parties in the proceeding of of the reasons reasons for for disqualification, disqualification, all all parties parties agree agree to having the to having Judge continue dge cont inu e to t o sitit in the pproceedings, he or she need oceedings , he need not not disqualify himself himself or herself.
When grounds for disqualification grounds for disqualification exist, exist,77 GCA GCA §§ 6106 requires a judge to disclose disclose any
facts that disqualify him under under Section 6105. If Section 6105. fails to declare his disqualification as If a judge fails
party may file a statement required, any PaM' of objection, setting statement of setting forth forth the facts facts constituting the
grounds of disqualification grounds of disqualification of of such judge. 77 GCA such judge. GCA §§ 6107. 6107. 77 GCA GCA§§6107 6107mandates, mandates, in in part: part:
statement of The statement of aa party party objecting objecting to to the the Justice Justice or or Judge Judge on on thethe ground ground of his or her disqualification shall be presented at the his or her disqualification shall be presented at the earliest practicable opportunity earliest opportunity after his his or orher herappearance appearance-and -and discovery of the facts constituting grounds of the Justice's Or discovery of the facts constituting grounds of the Justice's or disqualification, and in* Judge's disqualification, in· any event before the commencement of commencement the hearing of the hearing of issue of fact in of any issue in the the action action or proceeding before proceeding beforesuch such Justice Justice or or Judge. Judge.
7 7 GCA GCA§ §6107 6107(emphasis (emphasis added). added). IfIfa aparty partyfails failstotoobject objectat atthethe"earliest "earliestpracticable practicable
opportunity" after discovery opportunity" after discovery of of the the facts facts which which disqualify disqualify aajudge, judge,that that failure failure "constitutes "constitutes aa
Van Dax waiver." Van Dox v. Superior Court Court of ofGuam, Guam, 2008 2008 Guam i! As such, when Guam 77 1]45. when aa party remains
silent on aa known silent on known disqualification pursuanttoto77GCA disqualification pursuant GCA § § 6105(a), 6105(a), the the party party waives their right waives ·their right to to
later object to the the judge presiding. People judge presiding. ofGuam People of Guam v. v. Win, Wia, 2020 Guam Guam 17 i! 28. 17 'll l
"The rule rule that that a request for disqualification should be submitted prior to any hearing in
the matter before the matter before challenged judge the challenged judge 'rests on the principle that that aa party party may may not gamble on a a
7 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0411-24; I-24; People 0f v. Brian Jake Cepeda Alano of Guam v. Alana
favorable favorabledecision' decision'.... Thus, a statement of .... Thus, of obi section is normally timely if objection if it is submitted prior
to any any hearing hearing before before the challenged judge in the challenged judge the matter." matter." Van Van Dox, Dax, 2008 2008 Guam ,r 46. Guam 77 1] 46.
(citing to (emphasis added) (citing to an an exception exception that that itit is is not not appropriate appropriate to wait until the eve of of trial to
request disqualification based on information known months months earlier). earlier).
Importantly, the Importantly, the recusal recusal statute statute "is "is not not i_ntended intended to to 'bestow 'bestow veto power over judges or to
used as be used as aa judge shopping shopping device."' San San Agustin, Agustin, 2024 Guam ,r 24 (quoting Guam 2 'H (quoting People v. v.
Camaddu, 2015 Camaddu, 2015 Guam ,r 80). Guam 22 11 80). Likewise, Likewise, courts courts should should avoid avoid outcomes outcomes which which lead lead to to the
of the criminal justice system. See Camaddu, manipulation of Camaddu, 2015 2015 Guam ,r 80 (stating Guam 2 1180 (statingthat thatif if a
trial trial court court recused itself "every reused itself "every time time ititreceives receives unsolicited unsolicited material material uncomplimentary to a . uncomplimentary to
defendant prior to trial trial or sentencing [it] [it] would create an intolerable situation which could lead
to a manipulation manipulation of the criminal justice justice system.").
1. The The OAG OAGFailed Failedto to Object Object at at the the Earliest Earliest Practicable Practicable Opportunitv Opportunity
As noted, even even when when aa judge judge fails fails to to disclose disclose any any potentially potentially disqualifying disqualifying facts, facts, aa party
may object may object to to aa judge judge presiding presiding pursuant pursuant to to GCA 6107 but GCA §§ 6107 but must must do do so so at at the the earliest earliest practicable practicable
opportunity after discovery discovery of the the facts facts constituting constituting the the ground ground of the the judge's judge's disqualification disqualification or
else that party waives their right to to bring an an objection.
Here, although Judge Tolentino did not not disclose disclose any any facts, facts, the OAG was still still required to
bring its objection as soon as as possible possible after after discovery of of the the facts. facts. The Court Court understands understands the
OAG's position OAG's position to be that Moylan is generally generally involved involved in in the the OAG's cases, cases, even if he is not
lead counsel on a matter. matter. The OAG cites to to Judge Iriarte's Decision in Taitingfong Taitingfong, in which she
wrote, wrote, "Deputy Attorney Attorney General General Gloria Gloria Rudolph Rudolph Clarified clarified that Attorney GeNeral General Moylan is
consulted on general case strategy and plea agreements and and that that itit would would be be incorrect incorrect to say say that
he is not personally involved in this case." Objection at 6. Given that Moylan is the head of of the
8 f. DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People of CF0411-24; ofGuam v. Brian Jake Cepeda Alano
OAG, and that he is involved in matters whic:p. which the OAG OAG prosecutes, the OAG was aware of of the
facts regarding facts regarding Moylan's Moylan's and Judge Tolentino's Tolentino's relationship relationship by by January January 2023.
Despite being aware of of Judge Tolentino's Tolentino's and and Moylan's Moylan's relationship relationship by by January January 2023, 2023,
the OAG argues argues two primary reasons reasons for for why its Objection was timely: timely: (1) because because the OAG
filed its Objection prior to to Judge Judge Tolentino hearing the matter and only two weeks after after the case
was initiated; initiated, and (2) (2) because because the the Supreme Court of Guam issued an Opinion in San Agustin on
July 18, 2024 2024 which provided additional grounds on which to to require require disqualification. Objection
at 5.
A. The CCourt o Viewss the TOAG's V A G ' OObjection bj e io n in tthe he CContext o nt oof f JJudge udg Tolentino's Relationship with Moylan Movlan
First, the the OAG OAG cites cites to to Van VanDox, Dox, quoting quoting ininpart, part, that that aastatement statement of objection objection is
"normally" timely when when submitted submitted prior prior to a hearing by the challenged challenged judge and and also also that that the
timeliness requirement should be "liberally construed" to promote justice. Response timeliness Response at 2. The
OAG provides an an accurate accurate timeline of of the the procedural procedural posture posture in this this matter, matter, including that the
OAG filed filed its Objection within one week week after after the matter matter was assigned assigned to Judge Tolentino and
before Judge Tolentino ever set the .matter to to be be heard. heard. Id. Id at 3.
However,, despite However despit e 'the 't he Court's C our t 's Order Or der that t ha t the t he OAG expla explain whet whether itit br ought itits brought
Objection Objection at the earliest practicable practicable opportunity, opportunity, "considering "considering Attorney Attorney General Moylan has been
in office since January 2023," the January 2023," the OAG failed failed to address address the timeline of of its Objection in the
broader context broader context of of the the history history between between Judge Judge Tolentino Tolentino and and Moylan. Moylan. In In doing doing so, so, the the OAG
seemingly seemingly would would have the Court view this this matter mattersasananisolated isolatedobjection objectionrather rather than than in in the the larger larger
context ofMoylan's Moylan's relationship with Judge Tolentino.
Thus, hus, the the Cour Court must fir st analyze first whether it is analyze whether is appr opr iate to appropriate to view this this matter matter in in
isolation. isolation oror toto consider consider the the larger larger context context of of the history history of of the the relationship relationship between Judge Judge
9 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; Peopleof ofGuam Guam v. v. Brian BrianJake Jake Cepeda Alana Cepeda Alano
and Moylan Tolentino and Moylan since since and and prior prior to January 2023.
i. The Van Dox Standard Is Not Not Applicable
When the Supreme Supreme Court Court of of Guam announced announced in Van Dox in Van Dox that a statement of of objection is
"normally timely if it is "normally timely is submitted submitted prior to hearing before to any hearing before the challenged challenged judge the judge in the
matter," it cited a California case in support: Hollingsworth llingsw orthv.v.Superior Superior Court, Court, 191 191 Cal. App. 3d ad
22, 236 Cal. Rptr. 193 (Ct. App. 1987). In Hollingsworth, Hollingsworth, the California Court of Appeals found
that counsel presented presented its its statement statement of of disqualification disqualification at at the the earliest earliest practicable practicable opportunity opportunity
because the case had only recently been assigned to the challenged judge, and the Court Court found
that it would be unreasonable and impracticable to require a party to challenge a judge prior to
knowing which knowing which judge judgewill will hear hearthe the matter. Hollingsworth, 236 matter. Hollingsworth, 236 Cal. Cal. Rptr. Rptr. 193, 193, 196. 196.
Fur ther , when Further, when the Van Dox the Va Dox Cour Court wr ote tha wrote thatt the the timeliness timeliness·rrequirement equir should be
"liberally "liberally construed construed to promote promote justice," justice," itit cited to another another California case: Eagle Maintenance &
Supply Co. v. Superior Court, Court, 16 16 Cal. Rptr. 745 (Dist. Ct. App. 1961). In that case, the California
Court of Appeals notes that the the matter matter had had been been assigned to.a toa department department of ofthe the superior superior court, court,
judge. Eagle Maintenance, but not yet to a specific judge. 16 Ca. Rptr. 745, Maintenance, 16 745, 747. Thus, the court court stated, stated,
"it would "it would place place an undue hardship upon a litigant or his cowasel counsel to compel him to know before
the first first scheduled scheduled trial trialsetting, setting,what whatjudge judgewould wouldbe beassigned assignedtototry tryhis hiscase case.... ...." Id
h e llogicc iin Hollingsworth The Hollingsworth and Eagle Maintenance and Eagle Maintenance whichh ma es aa lib mandates er a liberal
construction of the timeliness standard does not apply apply to the unique unique situation situation before this Court. Court.
While OAG ma While the OAG mayy not not ha ve known have known tha t Judge that ssigned the be aassigned would be olentino would Judge TTolentino the aabove- bove-
captioned matter, was aware matter, it was aware by January 2023 that Judge January 2023 Judge Tolentino Tolentino would be assigned assigned some
10 DECISION AND ORDER DENYING DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OF OBJECTION OBJECTION CF04] CF041 I-24; l-24; People People of ofGuam v. v. Brian Brian Jake Cepeda Alano Alano
cases involving the cases the OAG, OAG, considering considering Judge Judge Tolentino is is one of of four four criminal judges5 in the criminal judges the
Superior Court of Guam Guam and and the the OAG files aasignificant OAG files significantnumber number of ofcriminal criminalcases. cases. Further, Further, the
facts that give rise to the OAG's facts OAG's Obj Objection sectionhave have remained remained the the same since prior to January 2023
sanie in all and remain the same all cases involving Judge Tolentino Tolentino and and Moylan. Moylan. Therefore, Therefore, this this is not a
circumstance in which a party must wait to see which judge is assigned "normal" circumstance assigned and and then, if if
there is a conflict, challenge challenge that judge. judge.
Instead, a more relevant case to review in this this matter is People of of Guam v. v. Win. Wia. There,
the he PPublic Defender Service lic Defender vice Corporation p or a t ion ("PDSC") ("P DS C ") had ha d raised r a is ed the t he issue is s u e of of the ju dge's judge's
disqualification previously disqualification previously in in other cases. cases. Win, Wia, 2020 17 ii,i 27. 2020 Guam 17 27. The The Supreme Supreme Court Court of of
Guam found that the defendant was aware aware of the conflict through through his his counsel's involvement in
the other cases, cases, and and the the fact fact that that they they remained remained silent in Win rendered his Wia rendered his objection waived and
untimely. Id. untimely. Id
Like in Win, Wia, this matter is more appropriately viewed in its broader context regarding the
ofthe parties' previous knowledge of the facts. facts. Here, Here, the the broader broader context context requires the Court to requires the to review
Tolentino's and Judge Tolentino's and Moylan's Moylan's relationship relationship as as well well as as the OAG's OAG's conduct conduct in in other other cases cases before
Judge Tolentino.
ii. Viewing this Viewing this Matter Matter in in IIsolation s o latio WWould o Permit Permit OOutcomes utco Contrary to the Recusal Statute's Intended Purpose
The recusal statute statute shall shall not not be be construed construed to to permit permit judge-shopping, judge-shopping, to to bestow bestow veto power
over judges, or to permit manipulation of the criminal justice system. San Agustin, 2024 Guam 2
,i 24; 1] 24, Camaddu, 2015 Guam 22 1] Camaddu, 2015 ,i 80. 80. Thus, Thus, the the Court must attempt attempt to avoid avoid these these undesired undesired
outcomes.. outcomes
5 5 PursuanttotoSupreme Pursuant SupremeCourt Courtof ofGuam GuamAdministrative AdminiStrativeRule RUleNo. No. 23-002, 23-002, in in addition to to the four criminal judges in the Superior Court the Superior Court of Guam, Guam, the Supreme Court of Supreme Court of Guam Guam created Court Court 8, 8, which is comprised comprised of ofboth both criminal criminal and and non-criminal non-criminal cases. to the cases. Court 8 is assigned to the Honorable Honorable John JohnC.C.Terlaje. Terlaje.
11 11 DECISION AND ORDER DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF OF OBJECTION CF04] I-24; People of CF0411-24; ofGuam v. Brian Jake Cepeda Alano
First, if First, if the the Court Court disqualified disqualified Judge Judge Tolentino Tolentino in in all all cases cases in in which which the the OAG files an
objection but allowed Judge Tolentino to to sit on any matter in which the OAG did not not object, object, it
would create create a system system in which the the OAG could could cherry-pickwhich cherry-pick which cases cases to to disqualify disqualify Judge Judge
Tolentino. Tolentino. Allowing the OAG Allowing the OAGtotodetermine determine which which cases cases itit will will permit permit Judge Judge Tolentino to sit sit on on
would clearly promote judge-shopping. See In re Takeno, Takano, No. BR BR 15~00108, 15-00108, 2016 WL 7384603
(D. Guam Dec. 19, 2016) (opining that allowing a party party to "cherry-pick" which cases to
disqualify a judge disqualify judge from from would promote judge-shopping). Unlike a criminal defendant, who is a
different individual in each case case with the right to decide whether whether to object object to a judge presiding,
the OAG represents represents the People of Guam. Because the People of of Guam Guam cannot cannot object to Judge
over certain Tolentino presiding over certain criminal criminal matters matters but not others, others, disqualifying Judge Tolentino disqualifying Judge Tolentino in
cases, without further some but not all cases, further explanation, is inappropriate.
Likewise, permitting Likewise, permitting the the OAG OAGtotosit siton onknown knownfacts factsfor formonths monthsand andthen then raise raise those those facts facts
disqualify Judge at any given time to disqualify Judge Tolentino Tolentino could could bestow bestow aa veto veto power power on on the and the OAG and
of the judicial system. For example, the OAG allow the manipulation of OAG could, could, theoretically, theoretically, hold
these facts over Judge these Judge Tolentino's head head with with the the constant constant threat thr~at of in all of raising them in all his his cases cases
after any after any unfavorable unfavorable decision. In other decision. In other words, words, the the same that prevents same logic that prevents a party party from from
disqualifying disqualifying aa judge judge after an unfavorable unfavorable decision in aa particular particular case case likewise prevents the
OAG from disqualifying aa judge after OAG ~fter an unfavorable decision in any case case involving involving the OAG.
Without speculating speculating about about the the OAG's OAG's motive to bring bring these recently tiled filed objections objections or
why itit has objected in some some cases cases but but not not others, others, the the fact fact that the possibility exists that the OAG
could use these strategies system necessitates strategies to forum-shop or manipulate the judicial system necessitates that the
view tthe C ourtt view OAG's object he OAG's objections broadly, ions br oa dly, rrather a t her tthan in isola ha n in isolation in t the t ion in instant he inst matter. a nt ma t t er .
Consequently, the Court Court declines declines to find that that the Objection Objection was was brought brought at at the earliest earliest practicable
12 12 DECISION AND ORDER DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OBJECTION OBJECTION CF0411-24; I-24; People of of Guam v. v. Brian Jake Cepeda Alano
opportunity oppor t unit y solely solely because beca use itit·was wa s filed filed promptly ompt ly after ft er the t he matter t er wass aassigned ssigned too Judge Judge
Tolentino. Tolentino
B. The The Supreme Court Court of Guam Issuing Its Its Opinion in San Agustin Does Justify the Not Justifv the OAG's OAG's Failure Failure to to Object Object atatthe theEarliest EarliestPracticable Practicable Opportunity Opportunitv
OAG argues The OAG argues that that their th.eir Objection Objection is timely timely because because it was was filed filed shortly shortly after after the
Supreme Court Supreme Court of of Guam issued its Opinion issued its Opinion in in San Agustin on July 18, 18, 2024, and San San Agustin
provided ovided additional ddit iona l grounds gr ounds on on which which tto require disqualification. disqualification. The O OAG AG argued that
]mploying the "[e]mp1oying the approach approach set set forth forth by the Supreme Court, Court, i.e., knowing knowing all all the the facts facts and and
understanding the context involving Judge Tolentino's history of himself where the of disqualifying himself
AG was involved, it is clear that Judge Tolentino is a disqualified judge judge in any case where AG
Moylan is involved. involved. The basis basis for for Judge Tolentino's prior disqualification disqualification hasn't changed." 97
Objection at 5. Objection
San Agustin is distinguishable from the instant instant matter matter for for several several reasons. reasons. First, First, that case
address whether an appearance of did not address of bias exists exists based on Judge Tolentino's relationship relationship
with Moylan. Second, the San Agustin Court held that Judge Tolentino was disqualified in that
recusal judge matter as the recusal judge because because he disqualified himself in the underlying case. case. Here, Judge
Tolentino has not disqualified himself himself in the underlying underlying matter matter and he is not the recusal judge. judge.
Supreme Court Moreover, the Supreme Court of of Guam Guam first first issued its Order in San Agustin on December
2023, which addressed the same issues 5, 2023, issues related to Judge Judge Tolentino's Tolentino's disqualification disqualification as the
recusal judge judge as as the the San San Agustin July 18, 2024 Opinion, albeit in less less detail. detail. The The OAG does not
distinguish why the July 18, 2024 Opinion in San Agustin triggered its mass objection, but the distinguish
December 5, 2023 2023 Order Order did not. not.
Therefore, the Therefore, the Court Court declines declines to to find find that that the the issuance issuance of of the the Opinion in San Agustin
13 13 v
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; PeopleofofGuam Guam v. v. Brian BrianJake Jake Cepeda Cepeda Alano
circumstances allowing changed the circumstances allowing the the OAG to timely timely file file numerous numerous statements statements of of objection objection
against Judge Tolentino based on previously known facts. facts.
c. C. The The OAG OAGHas Has Waived Waivedits its Objection Objection by by Silence Silence
As discussed As discussed previously, previously, parties can waive parties can waive aa judge's judge's 77 GCA GCA §§ 6105(a1 disqualification by 6105(a) disqualification by
remaining silent alter after learning of of potentially potentially disqualifying disqualifying facts. facts. Win, Wia, 2020 Guam 17 ,r 28. This 17 'II
"silence-as-waiver" rule renders an objection as waived when based on information previously
known to the parties known separate litigation. parties through separate litigation. Id. Id. (finding that PDSC waived by by silence
because they had raised the issue of of the judge's judge's disqualification disqualification iN in previous cases and, therefore,
of the issue). were aware of
Further, in Win, Further, the Supreme Wia, the Supreme Court Court of Guam declined declined to answer answer whether "the most most
egregious" egregious" conflicts conflicts are are waivable livable through throughsilence, silence,but butfound foundthat, that,ininthat thatcase, case,the thesi1ence-as- silence-as-
rule applied waiver rule applied because because counsel counsel had had been aware aware of the conflict and waited over a year year to
,r object. Id. atat1130.
Here, e, like like in m Win, Wia, the OAG wa ited over waited over aa yea r to year file its to file •its fir st objection first objection to to Judge Judge
Tolentino. The OAG OAG wa wass aaware wa r of of aall ll the the fafacts cts rregarding ega r ding Judge Judge TTolentino's olentino's aand nd Moyla n's Moylan's
relationship by relationship by January January 2023, 2023, yet waited waited until until May 1, 1, 2024 to file file its its first first objection to Judge
Tolentino in Ybanez. Ybanez. Further, the OAG continues to proceed in a number Further, the number of of cases before Judge
Tolentino without without objecting( objecting. Thus, the Court finds that the silence-as-waiver rule applies and the
waived its OAG waived its ability to object to Judge Tolentino based on his relationship with Moylan-..
The Court need not answer whether Judge Tolentino Tolentino is is disqualified disqualified from hearing matters
involving Moylan because even if if he is, is, the the OAG OAG has has waived waived its its right right to to object. object. Therefore, Therefore, the
Court denies the OAG's OAG's Objection ObjectionOn on the the basis basis that that itit was was not not brought brought at at the the earliest earliest practicable
opportunity.
14 14 U
I
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0411-24; CF04] Peopleof I-24; People ofGuam Guam v. v. Brian Brian Jake Jake Cepeda Cepeda Alano Alano
CONCLUSION
For the aaforementioned for ementioned reasons, ea sons, the the Court our t hereby her eby DENIES OAG's Objection. DENIES the OAG's Objection.
may continue Consequently, Judge Tolentino may continue to to preside over over the above-captioned matter.
SO ORDERED: ORDERED: - - - - ; . ,Air? Alll, 7- ~ - r e , -I :B?f. 9 · ~}i32[, ~~~-
HO ORABLE A. GUTI EZ Judy Sup§\'ior C"ourt\df Guam
SERVICE VIA·E-MAIL SERVICE vIA*E-mm acknowledae that I acknowledge that an an electronic .mpy ° ° 7j/,e 4 , 8 original was was e-mailad e-mailedWe to: " r P1250 tro;,rPC~
§.54,-N \V 1; _Cm/.; al Gum
15 15