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292 Aus 29 202li AUG I: 38
PH 1=3B 29 PH
3U§§3é3 COURT.A , (} SUPER:OR QQQQQT
IN THE
THE SUPERIOR
SUPERIOR COURT
COURT OF
OF GUAM
GUAM OFGUi\M go sg va ~
PEOPLE OF GUAM
GUAM CRIMINAL CASENO:
CRIMINALCASE CF0439-24 NO:CF0439-24
GPD GPDReport
ReportNos.
Nos.24-14956; 24-14957
24-14956; 24-14957
vs.
DECISION DECISION AND
AND ORDER
JAMIELYNN JAMIEL PANGELINAN CABRERA, DENYING DENYING OAG'S
OAG'S STATEMENT
STATEMENT OF
(aka Jamie Marie Pangelinan Cabrera) (aka Jamie Cabrera) OBJECTION DOB: 04/08/1982 DOB:04/08/1982
Defendant.
This matter
matter is before
before the
the Honorable Dana A. Gutierrez Honorable D,ana Gutierrez for the purpose of .limited purpose
the limited
the Attorney
reviewing the Office of the Attorney General's Statement of Obj "OAG") Statement
General's (the "OAG") Objection action
("Obi action"), in which ("Objection"), the OAG objects to the which the the Honorable Alberto E.
Honorable Alberto E. Tolentino Tolentino ("Judge
("Judge
presiding over the above-captioned matter Tolentino") presiding due to his relationship with Attorney matter due
General Douglas Moylan General Douglas ("Moylan"). Upon consideration Moylan ("Moylan"). the arguments and applicable of the
consideration of
Guam law, the Court hereby DENIES the QAG"s Objection. For the OAG's this reason, Judge Tolentino For this
may continue to preside over over this matter.
matter.
FACTUAL BACKGROUND
a
The following
following facts
facts are
are undisputed: Doris L:G.
undisputed: Doris Tolentino("Doris")
L.-G.Tolentino and Moylan were ("Doris") and
married and had married and hadtwo children-Brandon (born two children-Brandon 1990) and (born 1990) Angela (born and Angela (the "Moylan 1992) (the
(born 1992)
Children"); Children"); Doris
Dorisand
and Moylan 1997;Judge divorcedinin1997;
Moylandivorced Tolentinoand JudgeTolentino Dorismarried andDoris in2005
married'm and
2005 aNd
remain maniedtoday; remain married today; as
as such,
such, Judge stepfather of the Moylan the stepfather
Judge Tolentino is the Children. See Moylan Children.
Answer Answer to
to Statement
Statement of
ofObjection
Objection("Answer")
("Answer")at at ,r,r 14-15 111] 29, 2024).
14-15 (July 29,
As recently As recently as
as October Judge Tolentino 2022, Judge
October 2022, himself from sponte disqualified himself sua sponge
Tolentino sue cases from cases
in which Moylan
Moylan appeared becauseof counsel because
appeared before him as private counsel his relationship of his with Moylan relationship with Moylan
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of
ofGuam v.
v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera,
Cabrera
as the stepfather as stepfather or Moylan Children.
of the Moylan Children. See 'il 3, See Id. atat 1] 3; see
see also
also Statement of
of Objection
Objection
("Objection")
b ject ion") ata t Ex.
x . A-MM (J
(July 226,
6 , 22024)
0 2 4 ) (p(providing examples r oviding ex a of JJudge les of u dge TTolentino's olent ino'
disqualifications in cases involving Moylan from 2014 to 2022).
In 2022, Moylan was elected Attorney General of of Guam and was scheduled scheduled to take office
in January January 2023. 'il 5.5. InIn December 2023. Answer at 1] December 2022, 2022, Judge
Judge Tolentino
Tolentino and
and Moylan
Moylan met with
various other staff members various other of the OAG and members of and the the Superior
Superior Court
Court of
ofGuam
Guam totodiscuss
discuss Judge
Judge
Tolentino's previous Tolentino's previous disqualification disqualification in Moylan's 'il According to Judge Tolentino cases. Id. atat 1]6.
Moylan's cases.
undisputed by the OAG, and undisputed OAG, Moylan Moylan "assured
"assured [Judge
[Judge Tolentino]
olentino] and
and the
the other members in
t enda nce that a ttendance t ha t he he perceived
per ceived no
no conflict
conflict in
in his election
his elect ion a s tthe Attorney he At General
t or ney Gener a l a nd tthe he
prosecution of criminal cases cases before
before [Judge
[Judge Tolentino]."
Tolentino]." Id. 'il
Id at1]7.
During and after January
January 2023,
2023, Judge
Judge Tolentino
Tolentino presided
presided over many cases involving the
OAG without OAG without objection objection from
from the
the OAG.
OAG. See
See Answer 'il (stating Answeratat 114 (stating that that Judge
Judge Tolentino's
Tolentino's docket
consists mostly of criminal matters brought brought by
by the
the People
People of Guam through the OAG).
However, beginning in April of 2024, 2024, three Supt-:rior
Superior Courtt of Gua
Guam Judges
Judges issued
issued
Decisions and Or Decisions Orders aaddressing Judge TTolentino ddr essing whether Judge was olentino wa disqualified s disqua from ma
lified fr matters
tter
involving involving Moylan Moylan due to his relationship with Moylan and the Moylan Children.
First, on April First, on April 5, 2024,
2024, the Honorable
Honorable Joseph
Joseph N. Camacho,
Camacho, presiding as Judge presiding as Judge Pro
\ Tempore, Tempore, issued a Decision and Order in People People of Guam
Guam v.v. Nakita
Nikita TT Aguon, analyzing whether
Judge Judge Tolentino Tolentino was
was disqualified from cases disqualified from cases involving involving Moylan
Moylan pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105(a),
which which states tes that "Judge shallll disqualify tha t a "Judge disqua lify himself himself in
in any
a ny proceeding
pr oceeding in
in which
which his her
his or her
impartiality mi~ht might reasonably be questioned" unless both parties agree to have 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 April
April 5,
5, 2024);
2024), 77 GCA
GCA §§ I,
6105(a).). Judge 6105(a Judge Camacho found tha ma cho found that "a
"a 'rreasonable
sona ble person question whether son could question whether Judge Judge
r
3
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of
ofGuam v.
v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
Tolentino could be impartial in a case case proceeding at the
the direction
direction of [AG] Moylan" due to their
continuing relationships with continuing relationships with the the Moylan
Moylan Children.
Children. Id
Id at
at 8.
8. Thus,
Thus, the court
court held that,
that, "[a]t a
minimum, itit would would have
have been
been prudent
prudent for
for Judge
Judge Tolentino
Tolentino to
to disclose
disclose these
these relationships
relationships to the
parties." Id Id
Next, on June 4, 2024, the Honorable Elyze Elyse M.
M. Iriarte issued a Decision and Order Order as the
recusal judge in recusal judge People of Guam in People Guam v.
v. Carina
Corina Jamel
Jamel Taitingfong,
Taitin_gfong, et
et al., CF0024-24
CF0024-24 (Super.
(Super. Ct.
Guam June 4, 4, 2024).
2024). In that
that case, defendant objected case, the defendant objected to to Judge
Judge Tolentino
Tolentino presiding over the
case, and Judge Iriarte Iriarte held that Judge Tolentino was disqualified from the matter. Taitingfong Taitingfong,
CF0024-24 CF0024-24 at at 10. Judge Iriarte
10. Judge reasoned that Iriarte reasoned pursuant to that pursuant to 77 GCA
GCA §§ 6105(a),
6105(a), aa reasonable
reasonable question
question
exists regarding regarding Judge
Judge Tolentino's impartiality impartiality toward Moylan due to to their
their mutual
mutual relationship
relationship
with Judge Tolentino's Tolentino's stepchildren
stepchildren and due to the fact fact that Judge Tolentino had previously sua sue
sponte disqualified sponge himself from disqualified himself from all all matters
matters involving
involving Moylan
Moylan while
while Moylan was in
in private
private
practice. Id.
Id. at 5.
5. Further,
Further, Judge
Judge Iriarte
Iriartedetermined
determined that
that the
the proper
proper procedure
procedure would
would have been for
Judge Tolentino to sit only in matters where both both parties
parties had waived their right to object to his
the case.
presiding over the case. Id Id at
at 8.
8. Because the defendant
defendant objected
objected and
and clearly
clearly did not
not waive that
right, Judge Iriarte Iriarte held
held that
thatJudge
JudgeTolentino
Tolentinowas
wasdisqualified
disqualifiedfrom
fromsitting
sittingononthe
thecae.
case. Id at
at 8-9.
8-9.
Lastly, Lastly, on June 12,
12, 2024, the Honorable Maria T.
T. Cenzon issued a Decision and Order Order
Denying the OAG's OAG's Statement of Objection Statement of Objection in in People of
of Guam v.
v. Richard
Richard KY Ybanez,
Ybanez, CF0447-
23 (Super. Ct.
Ct. Guam June 12, 2024). In that case, case, on May 1, 2024,
2024, the
the OAG objected for the first
time to Judge Tolentino Tolentino presiding over the matter due due to
to his
his aforementioned
aforementioned relationship relationship with
Moylan and the Moylan Children. Ybanez, Ybanez, CF0447-23 at 5-6. Sitting as the the recusal judge,
judge, Judge
Cenzon found that that Judge Tolentino
Tolentino is not compelled compelled to
to disclose
disclose his
his relationship
relationship with Moylan
Moylan
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.
4
DECISION AND ORDER DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OBJECTION
CF0439-24,'People CF0439-24,· People of ofGuam v..lam
Guam v. ielynnPangelinan Jamielynn PangelinanCabrera Cabrera
Judge Cenzon provided several several reasons justifying justifying Judge
Judge Tolentino's omission, including
(1) that Moylan admitted during during the
the meeting
meeting with Judge Tolentino and other staff staff members that
he perceived perceived no continuing continuing conflict
conflict requiring
requiring Judge
Judge Tolentino's
Tolentino's disqualification, disqualification; (2)
(2) that
that
Moylan's and Moylan's and Doris's Doris's relationship,
relationship, which ended in in 1997,
1997, ended
ended sufficiently
sufficiently far
far in the past
past as to
currently be not culTently be aa concern concern when
when viewed
viewed objectively;
objectively, (3) that the Moylan Children, who are Judge
Tolentino's stepchildren, Tolentino's stepchildren, are all adults living on their own;
own, and (4) in the small legal community
himself in all cases involving Moylan would be "(a)
of Guam, for Judge Tolentino to disqualify himself "(a)
impractical to enforce, (b) negatively impact the administration of justice, and (c)
the efficient administration ( lead
to judge-shopping judge-shopping and/or overburden other judges judges in the same court."
court." Id.
Id at
at 17.
17.
Finally, on July 18, 2024, 2024, the
the Supreme Court of Guam issued an Opinion in In re Arthur
U San San Agustin Agustinv.
v. Superior
Superior Court
Courtof
ofGuam,
Guam, et
et al.,
al., 2024
2024 Guam2, disqualifying Judge Tolentino 2, disqualifying Tolentino in
matter, but that matter, but on grounds grounds that are unrelated to his his relationship
relationship with Moylan.
Moylan. The
The Suprerne
Supreme
Courtt of Gua Guam noted
noted tha
thatt they
they fir st issued
first issued their
their Or der disqua
Order lifying Judge disqualifying Judge TTolentino olentino on
December 5, 2023, December 2023, but Stated that their stated that their July 18, 18, 2024 Opinion
Opinion supersedes
supersedes that
that Order.
Order. San
Agustin, 2024 Guam 22 at Agustin, ,r 8. The at 118. The San Agustin Court noted that Judge Tolentino had previously
disqualified himself himself in that matter because "he, his wife, and his chamber chamber clerk have or had close
relationships with San Agustin and Nadean, Nadeau, [a
[a real party in interest], concluding this could create
,r at 114. The matter was then reassigned to the Honorable Presiding Judge Alberto a conflict." Id. at
C. Lamorena III, and the defendant defendant objected to Presiding Judge Lamorena presiding over the
matter. Id. at ,r 5. The issue of Presiding Judge Lamorena's Lamorena's recusal
recusal was then assigned to Judge
Tolentino, and Judge Tolentino Order concluding that Presiding Judge Tolentino issued a Decision and Order
Lamorena was not disqualified. ,r 6.6. Ultimately, Id atat 1]
disqualified. Id. Ultimately, the the Supreme
Supreme Court
Court of Guam held that
that
beca use Judge because Judge Tolentino olent ino had
ha d disqua lified himself disqualified himself in
in the
he under lying matter,
underlying t er , he he was aalso
lso
5
DECISION AND ORDER DENYING DENYINGOAG'S STATEMENT OF OBJECTION CF0439-24,' CF0439-24; People of Guam Guam v.v. Jamielynn
JamielynnPangelinan
Pangelinan Cabrera
Cabrera
from sitting as the recusal judge disqualified Hom judge and, therefore, vacated his decision and disqualified
him from from the thematter
matterentirely.
entirely.IdIdat at ,r,r 40, 54.
1111 54. The San
San Agustin
Agustin Court clarified
clarified the proper
proper
when aa party
procedure when party seeks seeks to
to challenge
challengeaa recusal
recusal judge
judgefor
forcause. Idatat1],r 34.
cause. Id
PROCEDURAL BACKGROUND
The instant matter matter was
was initiated
initiated on
on June
June 27,
27, 2024,
2024, when
when the OAG filed
filed aa Magistrate's
Magistrate's
Complaint, la int , accusing ccu s ing Jamielynn
J a mielynn Pangelinan
P a ngelina n Cabrera
C a b r er a ("Defendant")
("D efenda nt ") of
of two charges:
wo cha (1)
ges : (1
of a Schedule II
Possession of II Controlled Controlled Substance
Substance (As 3rd Degree (As aa 3rd Degree Felony);
Felony), and (2) Display or
rd
Possession of a Fraudulent License License Plate
Plate (As
(As aa 33rd Degree
DegreeFelony).
Felony). On July l,
1, 2024,
2024, the matter
wasassigned was.assigned to to Judge
Judge Tolentino.
On July 26, 2024, the OAG OAG filed
filed their
their Objection,
Objection, stating
stating that
that "disqualification of of Judge
Tolentino Tolentino from from this and any other
other matter involving Moylan Moyian is
is required"
required" due
due to
to their
their familial
familial
relationship. Objection at relationship. Objection at 7.
7. The
The OAG argues that "[a] reasonable reasonable person would presume presume that
that
Judge dge TTolentino's ent i no' 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 from disqualifying himself from any matters matters involving Moylan would would raise
raise aa reasonable
reasonable question
question
about his impartiality and and necessitates
necessitates his disqualification." Id his disqualification." at 6.
Id at
The Court notes that the the OAG has filed numerous identical objections to Judge Tolentino
presiding over over many
many criminal matters. 1 However, criminal matters.l However, the the Court
Courttakes
takes judicial notice 2 of judicial noticed of the
the fact
fact that,
1 1 This Court has been This Court been assigned assignedtotohear
hearthe
therecusal
recusalof JudgeTolentino ofJudge Tolentinoin inseveral severalcases
casesininwhich
whichthe
theOAG
OAG
has filed has filed identical statements of identical statements of objection, objection, including,
including, but
but not
not limited
limited to, thefollowing:
to, the People of following: People v.
Guam v. ofGuam
Pangelinan Reyes Peter Pangelinan Reyes Jr., CF0419-24 (Super.
(Super. Ct. Guam Aug.. Aug. 5, 2024); People 5, 2024), People of Guam v. v. Mark Anderson Anderson Paulino, (Super. Ct.
Paulina, CF0482-24 (Super. Ct. Guam Guam July 30,30, 2024), and People 2024); and People ofof Guam v. Jake v. Brian Jake
Cepeda Alano, CF04l1-24 CF0411-24(Super
(Super Ct.
Ct. Guam
Guam July
July 25,
25, 2024).
2024).
2 Guam Rules Rules ofof Evidence
Evidence("GRE")
("GRE") Rule 201201 governs governsjudicial
judicial notice
noticeof of adjudicative adjudicativefacts.
facts."A
"Ajudicially
judicially
noticed fact must be one one not not subject
subjecttoto reasonable
reasonabledispute
disputeininthat
thatititisiseither
either(1)
(1)generally
generallyknown
knownwithin
within
the territorial jurisdiction jurisdictionofofthe
thetrial
trialcourt
courtoror(2)
(2)capable
capableofofaccurate
accurateandand ready
ready determination
determination by resort to sources whose whoseaccuracy
accuracycannot
cannotreasonably
reasonablybe bequestioned."
questioned."GREGRE 201(b).
201(b).
6
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People of ofGuam v.v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
Cabrera
to date, date, the the OAG has not filed tiled objections in all of of its cases before Judge Tolentino, and instead is . . . 3 proceeding in certain matters.
matters.3
response to the OAG's Objection, In response Judge Tolentino Objection, Judge Tolentino issued issued his
his Answer on July
July 29,
29,
2024, denyiNg denying that that his
his disqualification was required in this this case.
case. Answer ,r 35. In support of Answer atat 1] of
position, Judge his position, Judge Tolentino olentino cites
cites to
to the
the meeting
meeting that he and
and Moylan
Moylan had
had r regarding
egar ding their
their
potential conflict, and the fact that Moylan stated that he perceived perceived no
no disqualification. Id atat1i,r 7.
disqualification. Id
Further, Further, Judge Judge Tolentino Tolentino states
states that
that the
the Moylan
Moylan Children
Children have
have "reached majority and adulthood
and have been residing at their their own
own residences."
residences." Id
Id
This matter was This matter was assigned to this assigned to this Court
Court on July
July 30,
30, 2024,
2024, for the limited
limited purpose
purpose of
of
recusal. On August 5, 2024, deciding Judge Tolentino's recusal. 2024, the Court issued an Order for for Further
Further
Briefing, requiring the OAG to explain their position position on whether the OAG has objected to Judge Judge
Tolentino presiding over cases Tolentino cases "involving "involving Moylan"
Moylan" atat the
theearliest
earliest practicable
practicable opportunity,
opportunity, as
as
required by Title required Title 7, Guam Code Code Annotated
Annotated ("GCA"),
("GCA"), Section
Section 6107,
6107, considering
considering Moylan has
been in office since January 2023. The TheCOUIT
Court permitted, but did not require, the Defendant to
respond to the same question. On August 12, 2024, 2024, the OAG filed their Response, arguing that
their objection timely. 4 The objection was ti1nely.4 The Defendant Defendant filed
filed aa Response
Response to
to Government's Statement Statement of
of
Objection on Objection August 12, on August 12, 2024, sta ting that 2024, stating tha t (1)
(1) the
the factual
ctua l claims
cla ims put
put forth
for th in
in the
the OAG's
not constitute a disqualification, Objection do not the Defendant waives any conflict, disqualification; (2) the and (3) the conflict; ·and
33 According According to to the
the Superior
Superior Court
Courtofof Guam's
Guam's We~kly
Weeldy Calendar
Calendar for
for the
the week
week of August26,
26, 2024,
2024, Judge
Tolentino continues to have a full calendar ofcases cases moving forward which list the OAG as counsel. Judge Tolentino Tolentino remains scheduled scheduled to'
to hear progress
progress hearings,
hearings, status
status hearings,
hearings, further
further proceedings,
proceedings, motion
hearings, pre-trial conferences, hearings, pre-trial conferences, change change ofof pleas,
pleas, return
return of warrants, and jury warrants, and jury selections selections and trials
trials in
criminal matters involving the OAG. The Superior Court of Guam's Weeldy Weekly Calendar Calendar is posted publicly on the Judiciary Judiciary ofofGuam's Guam'swebsite,
website,available
availableatathttps://www.guamcourts.org/Calendar/images/Weeklyhttps ://www.guamcourts.org/Calendar/images/Weekly-
AET.pdf. . 4 4 The OAG's The OAG's Response didnot Response did not raise
raise any
anynew
newarguments
argumentsnot
notstated
statedinintheir
their Objection.
Objection.
7
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of
ofGuam v.
v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
Cabrera
OAG failed failed to to object
object atat the
theearliest
earliest practicable
practicable opportunity and therefore opportunity and has waived therefore has waived any
any
conflict.
DISCUSSION
77 GCA GCA §§ 6105
6105 provides
provides the
the substantive
substantive grounds
grounds for
for judicial
judicial disqualification in Guam.
disqualification in Guam. 77
GCA GCA §§ 6105(a)
6105(a) states in full:
states in full:
shall disqualify himself
Any Judge shall himself or herself in any proceeding in which his oror her
her impartiality
impartiality might reasonably reasonably be questioned, questioned, but
if, following complete disclosure to all all parties in the proceeding of of
the reasons for disqualification, the reasons disqualification, all all parties parties agree
agree to
to having
having the
Judge continue
dge cont inu e to
t o sitit in
in the pproceedings,
oceedings , he
he oror she
he need not
not
disqualify himself
himself or herself.
When grounds When grounds for for disqualification exist, 77 GCA disqualification exist, GCA §§ 6106 requires aa judge 6106 requires judge to to disclose
disclose any
any
facts that facts that disqualify disqualify him
him under Section 6105.
6105. If a judge fails
fails to
to declare
declare his
his disqualification
disqualification as
required, any required, any party party may file
file aa statement
statement of
of objection,
objection, setting
setting forth
forth the
the facts
facts constituting
constituting the
grounds of grounds of disqualification disqualification of
of such judge. 77 GCA
such judge. GCA §§ 6107.
6107. 77. GCA
GCA §§ 6107
6107 mandates,
mandates, in
in part:
part:
The statement of a party objecting objecting to
to the
the Justice Judge on the Justice or Judge
ground of his ground his or
or her
herdisqualification
disqualification shall
shall be
be presented
presented at the
earliest practicable
practicable opportunity
opportunity after
after his or her
her appearance
appearance and
discovery discovery of the facts constituting constituting grounds
gr ounds of of the
the Justice's
Justice's or
or
Judge's disqualification, and in any event before the commencement commencement of ofthe
the hearing
hearing of
of any
any issue
issue of
of fact
fact in
in the
the action
action or
proceeding before suchJustice Justice or Judge.
77 GC GCAA §§._6107 6107 (empha is aadded).
(emphasis dded). If
If aa pa r t y fafails
party ils t oto object object a tatt he
the"ea r lies t prpracticable "earliest a ct ica ble
opportunity" after discovery of opportunity" of the the facts
facts which
which disqualify
disqualify a judge, that failure "constitutes "constitutes a· .
waiver." Dox v. Superior Court waiver." Van Dox Court of ofGuam,
Guam, 2008 Guam
Guam 77,r
'H 45.
45. As such, when
when aa party remains
silent on a known disqualification pursuant pursuantto GCA §
to77 GCA § 6105(a),
6105(a), the party waives their right to
later object to the judge judge presiding.
presiding. People of
ofGuam v. Win,
Wia, 2020 Guam 17 1]28.
17,r
"The rule "The rule that that aa request
request for
for disqualification
disqualification should
should be
be submitted
submitted prior to any
any hearing in
the matter before before the
the challenged
challenged judge
judge 'rests on the principle that a party party may
may not gamble on a
8
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of
ofGuam v.
v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
favorable decision' favorable decision' ....
.. . Thus, a statement of objection is normally timely if if it is submitted prior
to any any hearing hearing before before the challenged judge in challenged judge in the
the matter."
matter." Van
Van Dox, 2008 Guam ,r 46.
Guam 77 1]
(citing to an
(emphasis added) (citing an exception exception that
that itit is
is not
not appropriate
appropriate to wait until the eve of of trial
trial to
request disqualification based on information known known months
months earlier).
earlier).
Importantly, the recusal statute "is not intended intended to 'bestow veto power power over
over judges or to
used as a judge shopping be Lised shopping device. an ,r
device."' San Agustin, 2024 .Guam 2 'H 24 (quoting.
(quoting_ People v.
Camaddu, 2015 Guam 22'H,r 80). Camaddu, 80). Likewise, courts should Likewise, courts should avoid avoid outcomes
outcomes which
which lead
lead to the
of the criminal
manipulation of criminal justice system. See Camaddu, ,r (stating that ifif a Camaddu, 2015 Guam 2 1180
trial court trial court recused reused itself
itself "every
"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 situation which could lead
to a manipulation manipulation of the criminal justice justice system.").
1. The OAG Failed to Object at the Earliest Practicable Practicable Opportunity
Opportunitv
As noted, 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
GCA §§ 6107 but Must
6107 but must do
do so
so at
at the
the earliest practicable
earliest 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 that party party waives
waives their
their right
right to bring an objection.
Here, although Judge Tolentino did not not disclose
disclose any
any facts,
facts, the OAG was
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 generally involved that Moylan is generally involved in in the
the OAG's cases,
cases, even if he is not
lead counsel on a matter. The OAG cites to JUdge Judge Iriarte's Decision in Taitingfong, Taitingfong, in which she
wrote, "Deputy Attorney General Gloria Rudolph clarified wrote, clarified that that Attorney
Attorney General
General Moylan is
consulted on general case strategy and plea agreements agreements and
and that
that it would
would 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 the
9
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People of ofGuam v.v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
Cabrera
OAG, and that he is involved in matters which the OAG prosecutes, prosecutes, the OAG was aware of of the
facts facts regarding regarding Moylan's Moylan's and
and Judge
Judge Tolentino's
Tolentino'srelationship
relationshipby
byJanuary
January2023
2023.
Despite being aware of Despite 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 why its Objection was timely:
timely: (1) because
because the
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 which provided additional grounds on which to to require
require disqualification. Objection
at 5.
A. T he C o urt V iewss t he O Court AG's O OAG's bj ect io n in
Objection in tthe
he CContext
o nt ext ooff JJudge
udg e
Tolentino's Relationship with Moylan Movlan
First, First, the OAG OAG cites
cites to Van
Van Dox,
Dox, quoting
quoting in part,
part, that
that a statement of objection statement of objection is
"normally" timely when when submitted
submitted prior
prior to a hearing by the challenged challenged judge and
and also
also that the
timeliness requirement should be "liberally construed" to promote justice. Response timeliness Response at 2. The
OAG provides provides an an accurate
accurate timeline of
of the
the procedural
procedural posture
posture in
in this
this matter,
matter, including that the
OAG filed filed its its Objection less than one month month after
after the
the matter
matter was assigned
assigned to Judge Tolentino Tolentino
and before Judge Tolentino ever ever set the matter to be heard.
heard. Id.
Id at
at 3.
However However, , despite des p it e the
t he Court's
r t 's Order
der that
ha t the
he OAG
OAG ex p la whet
explain whether itit bbrought r ou itits
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
have the
the Court
Court view
view this
this matter
matter as
as an
an isolated
isolated objection
objection rather
rather than in the larger
context ofMoylan's Moylan's relationship with Judge Tolentino.
Thus, hus, the the Cour
Court must first
st analyze whether it is appr analyze whether iate to appropriate to view
view this
this matter
matter in
isolation or to isolation or to consider the larger consider the larger context context of the
the history
history of
of the
the relationship
relationship between Judge Judge
10
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People 0f
ofGuam v.v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
Tolentino and Tolentino and Moylan Moylan since
sinceand
andprior
priorto
to January
January2023
2023.
i. Van Dox Standard Is Not Applicable The Van
When the Supreme Supreme Court
Court of Guam announced
announced in
in Van
Van Dax
Dox that a statement
statementof
of objection
objection is
"normally timely "normally timely if it is is submitted
submitted prior to
to any hearing
hearing before
before the challenged judge in the challenged judge
matter," it cited a California case case in support:
support: Hollingsworth v. Superior Court, Court, 191
191 Cal. App. 3d
ad
22, 236 Cal. Rptr.
Rptr. 193 (Ct.
(Ct. App. 1987). In Hollingsworth, Hollingsworth, the California Court of Appeals found
that that counsel presented its statement statement of
of disqualification
disqualification at the
the earliest
earliest practicable
practicable oppomlnity
opportunity
because because the the case case had only recently been assigned to the challenged judge, and the Court found
that it would be unreasonable and impracticable to require a party to to challenge a judge prior to
knowing which knowing which judge judge will
will hear
hear the matter. Hollingsworth, Hollingsworth, 236 Cal. Rptr. 193, 196.
Further, ther , when
when the
the Va
Van Dox
Dox Cour
Court wr ote tha
wrote that the
the timeliness
timeliness rrequirement
equir should
should be
"liberally "liberallyconsoled construedtotopromote
promotejustice,"
justice,"ititcited
citedtotoanother
another California
Californiacase:
case: Eagle Maintenance
Maintenance &
&
Supply Co. v. Superior Court, 16 Cal. Rptr. 745 Court, 16 745 (Dist.
(Dist. Ct.
Ct. App.
App. 1961).
1961).111 thatcase,
In that case, the
the California
California
Court of Appeals notes that the matter had been assigned assigned to aa department department of
of the
the superior
superior court,
court,
\I
but not yet to a specific judge. Eagle Maintenance, Maintenance, 16
16 Ca. Rptr. 745, 747. Thus, the court stated, stated,
place an undue hardship upon a litigant or his "it would place his counsel counsel to
to compel
compel him to know before
first scheduled the first scheduled trial trialsetting,
setting,what
whatjudge
judgewould
wouldbe
beassigned
assignedtototry
tryhis
hiscase
case....
...." Id
Id.
Thee llogicc iin Hollingsworth llingsworth and
and Eagle
Eagle Maintenance
Maintenance whic
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
this Court.
While While the may the OAG ma not ha y not have
ve known
known tha t Judge
that Judge TTolentino
olentino would
would be
be aassigned
ssigned the
the aabovebove
-
captioned matter, matter, it
it was
was aware
aware by January
January 2023
2023 that Judge
Judge Tolentino
Toientino would be assigned assigned some
P
11
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People of ofGuam v.v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
cases involving cases involving the the OAG,
OAG, considering
considering Judge
Judge Tolentino
Tolentino isis one
one of
of four
four criminal judges5 in the criminaljudges
Superior Court of Guam OAG files Guam and the OAG files aa significant significant number
number of
of criminal
criminal cases.
cases. Further,
Further, the
facts that facts that give give rise
rise to
to the
the OAG's
OAG's Objection have remained remained the
the same
same since
since prior
prior to
to January
January 2023
and remain the same in all cases involving Judge Tolentino and and Moylan.
Moylan. Therefore,
Therefore, this is not a
circumstance in which a party must wait to see which judge is "normal" circumstance is assigned assigned and then, if
if
there is a conflict, conflict, challenge
challenge that judge.
judge.
Instead, a more relevant case to review in this matter is People of of Guam v. Win.
Wia. There,
the Public Public Defender Service Service Corporation
Corporation ("PDSC")
("PDSC") ha d rraised
a is ed tthe
he issue of tthe judge's
disqualification previously disqualification previously in in other cases.
cases. Win,
Wia, 2020 Guam 17 ,r 27.
17 1] 27. The
The Supreme 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.
Id
Like in Win, Wia, this matter is more appropriately viewed in its broader context regarding the . .
parties' previous knowledge of of the
the facts.
facts. Here, the broader context requires the Court to review
Tolentino's and Judge Tolentino's and Moylan's Moylan's relationship
relationship as
as well
well as
as the
the OAG's
OAG'sconduct
conductininOther
other cases before
Judge Tolentino.
ii. Viewing this
Viewing this Matter
Matter in
in Isolation
Isolation Would
Would Permit
Permit Outcomes
Outcomes
Contraryto Contrarv to the
the Recusal
Recusal Statute's
Statute's Intended
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 of the criminal justice system. San Agustin, Agustin, 2024 Guam 2
,r 24, 1[ 24; Camaddu, Camaddu, 2015 Guam ,r 80.
Guam 2 1] 80. Thus,
Thus, the Court
Court must
must attempt
attempt to
to avoid
avoid these
these undesired
undesired
outcomes. outcomes.
55 Pursuant Pursuant to to Supreme
Supreme Court
Court of
of Guam
Guam Administrative
Administrative Rule
Rule No.
No. 23-002,
23-002, in
in addition
addition to
to the four criminal
judges in the Superior Court of Guam, the Supreme Court of Guam created Court 8, which is comprised of of both criminal and non-criminal non-criminal cases.
cases. Court 8 is assigned to the Honorable John C. Terlaje.
12
i"
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24,' CF0439-24; People of Guam v.v. Jamielynn JamielynnPangelinan
Pangelinan Cabrera
Cabrera
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 tiles
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 OAG
OAG could
could cheny-pick
cherry-pick which
which cases
cases to
to disqualify
disqualify Judge
Judge
Tolentino. Allowing the OAG to determine which which cases
cases itit will permit Judge Tolentino to sit on
would clearly promote judge-shopping. See In re Takeno, BR 15-00108, Takano, No. BR 15-00108, 2016 WL 7384603
(D. Guam Dec. 19, 2016) (opining (D. Guam (opining that allowing a party that allowing party to
to "cherry-pick" which ca cases to
to
disqualify a judge disqualify judge from from would promote judge-shopping). Unlike a criminal defendant, defendant, who is a
different individual in each ca~e case with the right to decide whether whether to object to aa judge presiding,
the OAG represents represents the People of Guam. Because the People of of Guam cannot
cannot object
object to Judge
Tolentino presiding over over certain criminal matters but not others, disqualifying disqualifying Judge Tolentino in
some but but not
not all
ali cases, without further explanation, is inappropriate.
Likewise, permitting the OAG OAG to
to sit
sit on known
known facts
facts for
for months
months and
and then
then raise
raise those facts
facts
at any given time to disqualify Judge Toleritino Tolentino could bestow a veto power on the OAG and
allow the manipulation anipul as on of
of the
the judicial
judicial system.
system. For example, the OAG could, theoretically, hold
these facts Judge Tolentino's head with facts over Judge with the the constant
constant threat
threat of
of raising them in all
all his cases
cases
after after any unfavor able decision.
unfavorable decision. In In other
other words,
wor ds, the
the ·same
same logic that
that prevents
events a par
party fr
from
disqualifying disqualifying a judge after an unfavorable unfavorable decision in aa particular particular case likewise prevents the
OAG OAG from disqualifying disqualifying aa judge after an unfavorable decision in any case case involving
involving the OAG.
Without speculating about the speculating about the OAG's OAG's motive to bring
bring these
these recently
recently filed objections objections or
why why itit has objected in in some
some cases
cases but
but not
not others,
others, the
the fact
fact that the possibility exists that the OAG
could could use use these strategies
strategies to
to forum-shop
forum-shop or manipulate
manipulate the
the judicial
judicialsystem
systemnecessitates
necessitates that the
Court view the the OAG's
OAG's objections
objections br oa dly, r ather broadly, ther thann in in isola tion in
isolation in the
the insta nt ma
instant tter .
matter.
Consequently, Consequently, the the Court
Court declines
declines to
to find
find that
that the Objection
Objection was
was brought
brought at
at the earliest
earliest practicable
13
DECISION AND ORDER DENYING DENYING OAG'S STATEMENT OF OBJECTION CF0439-24,' v. Jamielynn CF0439-24; People of Guam v. Jamielynn Pangelinan Cabrera
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 to Judge
Judge
Tolentino.
B. The Supreme
The em Courtt of
of Guam
Guam Issuing
Issuing Its Opinion in San San Agustin Does Does Not o t JJustify
u s v the OAG's
A G ' s FFailure
a i l u r e t to
o OObject
b j e c t aat
t t hthe
e EEarliest
a r l i e s t PPracticable ractica
Opportunity ppo v
QAG argues
The QAG argues that that their
their Objection
Objection is timely
timely because
because itit was
was filed
filed shortly
shortly after
after the
Supreme me Court C r t of Guam is issuedd its
its Opinion
Op in io n in San Agustin on July 118, 2024, and San Agustin
provided ovided additional ddit iona l grounds
gr ounds on
on which tto r require disqualification.
equir disqua lifica t ion. The T he OAG aargued
r gued tthat
ha
"[e]mploying the "[e]mploying approach set the approach set forth
forth by the Supreme
Supreme Court,
Court, i.e.,
i.e., knowing facts and knowing all the facts and
understanding the context involving Judge Tolentino's of disqualifying himself Tolentino's history of himself where the
AG was involved, it is clear that Judge Tolentino is a disqualified judge in any case where AG
Moylan is involved.
involved. The basis for Judge Tolentino's prior disqualificaticjn disqualification hasn't
hasn't changed." 77
Objection Objection at 5.
San Agustin is distinguishable from the instant instant matter
matter for
for several
several reasons.
reasons. First,
First, that case
did not not addr ess whether an appearance of 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
matter as the the recusal
recusal judge
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
and he is
is not the recusal judge.
judge.
Moreover, the Supreme Supreme Court
Court of
of Guam first
first issued its Order in San Agustin on December
5, 2023, 2023, which addressed the same same issues
issues related
related to
to Judge
Judge Tolentino's
Tolentino's disqualification disqualification as the
recusal judge judge as San Agustin July 18, 2024 Opinion, albeit in less detail.
as the San detail. The The OAG does not
distinguish u is h why w the July
u ly 18,, 2024
2 0 2 4 Opinion
Op in io n in San Agustin triggered triggered its
its mass
mass objection, but the
the
December December 5, 2023 Order did not.
Therefore, the Court Therefore, the Court declines declines to
to find
find that
that the
the issuance
issuance of
of the
the Opinion in San Agustin
14
»
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of
ofGuam v.
v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabre.ra
Cabrera
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 OAG
The OAGHas
Has Waived
Waivedits
its Objection
Objection by
by Silence
Silence
As As discussed
discussed previously,
previously, parties can waive parties can waive aa judge's judge's 77 GCA
GCA §§ 6105(a)
6105(a) disqualification by disqualification by
silent after
remaining silent after learning of of potentially
potentially disqualifying facts.
facts. Win, Guam 17
Wia, 2020 Guam ,r This 17 1128.
"silence-as-waiver" rule "silence-as-waiver" rule renders renders an
an objection
objection as
as waived when based on
on information
information previously
previously
known to tthe parties parties through separate
separate litigation.
litigation. Id.
Id. (finding that PDSC waived by by silence
because they had raised the issue of of the jUdge's
judge's disqualification in previous cases and, therefore,
were aware of of the issue).
Further, Wia, the Supreme ther in Win, Supreme Court Court of Guam declined
declined to answer
answer whether
whether "the most
most
waivable
egregious" conflicts are liva through b le t hr ilence, but ou gh ssilence, but found found that, in that case, the si1ence-assilence -as-
waiver rule applied because because counsel had been aware aware of
of the
the conflict
conflict and waited over a year year to
,r 30.
object. Id. atat1]
Here, like m Here, like in Win,
Wia, the OAG waited
waited over aa year
year to
to file its
its first
first objection
objection to Judge
Tolentino. olentino. The T he OAG was aware
aware of
of all
all the
the facts
facts regarding
regarding Judge TTolentino's and and Moylan's
Moylan's
relationship by relationship by January January 2023,
2023, yet
yet waited
waited until its first until May 1, 2024 to file its first objection to Judge
Tolentino in Ybanez. Further; the Ybanez. Further, number of the OAG continues to proceed in a number of cases before Judge
without objecting.
Tolentino without objecting. Thus, Thus, the Court finds that the silence-as-waiver silence-as-waiver rule applies and the
OAG OAG waived waived its its ability to object to Judge Tolentino based on his relationship with Moylan.
The Court need not answer whether whether Judge Tolentino
Tolentino is
is disqualified
disqualified from hearing hearing matters
involving Moylan because even if if he
he is,
is, the
the OAG
OAG has
has waived
waived its
its right
right to
to object.
object. Therefore,
Therefore, the
OAG's Objection
Court denies the OAG's ObjectionOn on the
the basis
basis that
that itit was
was not
not brought
brought at
at the
the earliest
earliest practicable
practicable
opportunity. oppommity.
15
DECISION AND ORDER DENYING OAG'S STATEMENT STATEMENT OF OF OBJECTION OBJECTION
CF0439-24; People of
of Guam v.v. Jamielynn
Jamielynn Pangelinan
Pangelinan Cabrera
Cabrera
CONCLUSION
For the
the aaforementioned
for rreasons,
sons, the
the Cour
Court her
hereby DENIES the OAG's
OAG's Objection.
Objection.
Consequently, Judge Tolentino Tolentino may
may continue
continue to preside over
over the above-captioned matter.
SO ORDERED: A1112'SPY3`?¥?Z
HC A. GUT EZ Jd e. Superior Courlt d>f Guam
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