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CLEm{53? CLERK COURT
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202llSEP 202~ SEP 3SD
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SUPE§l%U§8€ (_,GE_fF8T
IN THE
THE SUPERIOR
SUPERIOR COURT
COURT OF
OF GUAM
GUAM
oF Gum 5
PEOPLE OF GUAM GUAM CRIMINAL CRIMINALCASE
CASENO:NO:CF0330-23
CF0330-23
Police Police Report
Report No.
No. 23-12196
23-12196
vs.
DEVIN DEVIN JABO CHIGUINA CHIGUINA
DOB: DOB:03/22/1994 03/22/1994 DECISION AND ORDER DENYING OAG'S STATEMENT OF ROSE ROSE LIN BACA BACA OBJECTION DOB: DOB:09/24/1981 09/24/1981
Defendants. Defendants.
This matter matter is before the
the Honorable Dana A. Gutierrez Honorable Dana the limited Gutierrez for the purpose of limited purpose
reviewing the Office reviewing the Office of of the
the Attorney
Attorney General's
General's (the
(the "OAG")
"OAG")Statement Objection ofObjection
Statement of
("Objection"), ("Objection"), in in which
which the
the OAG
OAG objects
objects to
to the
theHonorable
Honorable Alberto E. Tolentino Alberto E. ("Judge Tolentino ("Judge
Tolentino") presiding presiding over
over the
the above-captioned matter due above-captioned matter his relationship due to his Attorney relationship with Attorney
General General Douglas Douglas Moylan ("Moylan").
("Moylan").Upon consideration ofofthe Uponconsideration arguments and thearguments applicable and applicable
Guam law, the the CoUrt
Court hereby DENIES the OAG's this reason, For this
OAG's Objection. For Judge Tolentino reason, Judge
may continue to preside over over this matter.
matter.
FACTUAL BACKGROUND
The following following facts
facts are
are undisputed: DorisL.G.
undisputed: Doris Tolentino ("Doris")
L.G. Tolentino were and Moylan were
("Doris") and
manned andhad married and hadtwo twochildren-Brandon
children-Brandon (born
(born 1990)
1990) and
and Angela (born 1992)
Angela (born (the "Moylan 1992) (the "Moylan
Children"), Children"); Doris Dorisand
and Moylan
Moylandivorced
divorcedinin1997, Tolentinoand Judge Tolentino
1997;Judge Dorismarried andDoris in 2005 married in and
2005 and
remain married married today;
today, as
as such,
such, Judge
JudgeTolentino
Tolentino is
is the
the stepfather
stepfatherof
of the Children. See Moylan Children.
the Moylan
Answer Answer to Statement of of Objection
action("Answer")
("Answer") at ,r,r14-15
at W 28, 2024).
(August 28,
14-15 (August
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of
a/Guam v. Devin Jabo
Jato Ch iguina and
Chiguina and Rose Lin
LinBoca
Baca
As recently as October 2022, Judge Tolentino sue sua sponge
sponte disqualified himself himself from cases
in which Moylan appeared before him as as private counsel because of of his relationship with Moylan
as the stepfather stepfather of the the Moylan
Moylan Children. Id. atat 1],r 3, Children. See Id 3; see see also
also Statement
Statement of
of Objection
Objection
("Objection") at ("Objection") a t Ex. (August 23, Ex. A-MM (August 23, 2024)
2024) (pr
(providing examples
oviding exa of Judge mples of Judge TTolentino's olentino's
disqualifications in cases involving Moylan from 2014 2014 to 2022).
In 2022, Moylan was elected Attorney General of of Guam and was scheduled to take office
January 2023. in January ,r 5.5. InIn December 2023. Answer at 11 December 2022, 2022, Judge
Judge Tolentino
Tolentino and
and Moylan
Moylan met with
with
various other various other staff members of staff members of the
the OAG and
and the
the Superior
Superior Court of Guam
Guam to
to discuss
discuss Judge
Judge
Tolentino's previous Tolentino's previous disqualification disqualification in Moylan's cases. Id. atat ii,r 6. According to Judge Tolentino Moylan's cases.
and undisputed and undisputed by by the OAG, Moylan
the OAG, Moylan "assured
"assured [Judge
[Judge Tolentino]
olentino] and
and the
the other members in
attendance t enda nce that t ha t he
he perceived
per ceived no
no conflict
conflict in his elect
in his election
ion as tthe At
Attorney
t Generall and tthe
Gener
of criminal
prosecution of criminal cases cases before [Judge
[Judge Tolentino]." Id.atat1],r 7.
Tolentino]."Id
During and after January January 2023,
2023, Judge
Judge Tolentino
Tolentino presided
presided over many cases involving the
without objection OAG without objection from from the
the OAG.
OAG. See
See Answer ,r (stating Answer atat 114 (stating that that Judge
Judge Tolentino's
Tolentino's docket
consists mostly of criminal matters brought by by the
the People of Guam
Guam through the OAG).
However, beginning However, beginning in April of of 2024,
2024, three
three Superior
Superior Court of
of Guam
Guam Judges
Judges issued
issued
Decisions and Decisions Orders aaddressing nd Or Judge TTolentino ddr essing whether Judge was olentino wa disqualified s disqua from ma
lified fr matters
tter
involving Moylan involving Moylan due due to
to his relationship with Moylan and the Moylan Children.
First, on First, 2024, the Honorable April 5, 2024, on April Honorable Joseph Joseph N. Camacho,
Camacho, presiding
presiding as
as Judge
Judge Pro
Tempore, issued a Decision and Order in People of Guam Tempore, 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
tha t aa "Judge
"Judge shallll disqualify disqua lify himself
himself in
in any
a ny proceeding
pr oceeding in
in which
which his her
his or her
impartiality might might reasonably be
be questioned" unless both parties patties agree to have the the judge
judge continue
3
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of
of Guam v.v. Devin
Devin Jabo
Jato Chiguina
Chiguinaand
andRose
Rose Lin Boca
Baca
Aguon, CM0145-21
to sit in the proceedings. Aguon, at 77 (Super.
CM0145-21 at Ct. Guam (Super. Ct. Guam April
April 5,
5, 2024);
2024), 77 GCA
GCA §§
6105(a 6105(a).). Judge Judge Camacho
ma cho found
found that "a
"a rreasonable
ea sona ble per
person could
could quest
question whet
whether Judge
Judge
impartial in a case proceeding at the direction of [AG] Moylan" due to their Tolentino could be impartial
continuing relationships continuing relationships with with the
the Moylan
Moylan Children.
Children. Id. at 8.
Id at 8. Thus,
Thus, the
the court
court held
held that,
that, "[H]t
"[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 Blyze M.
M. Iriarte issued a Decision and Order Order as the
recusal judge in People recusal judge People of Guam Guam v.
v. Carina
Corina Jamel
Jamel Taitingfong,
Taitingfong, et
et al., CF0024-24
CF0024-24 (Super.
(Super. Ct.
Guam June 4, 2024). In that case, case, the
the defendant objected to Judge Tolentino presiding over the
case, and Judge Iriarte Taitingfong, Iriarte held that Judge Tolentino was disqualified from the matter. Tatting/"ong
CF0024-24 CF0024-24 at at 10.
10. Judge Iriarte reasoned Judge Iriarte that pursuant reasoned that pursuant to to 7
7 GCA
GCA §§ 6105(a),
6105(a), aa reasonable question reasonable 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
to the fact that Judge Tolentino had previously sua the fact sue
sponte disqualified sponge disqualified himself himself from
from all
all matters
matters involving
involving Moylan
Moylan while in private while Moylan was in 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
in matters
Judge Tolentino to sit only in matters where both both parties
parties had waived
waived their
their right to object to his
presiding over the case.
case. Id. at 8.
Id at 8. Because
Because the
the defendant
defendant objected
objected and
and clearly
clearly did not
not waive that
that
right, Judge Iriarte Iriarte held
held that
that Judge
Judge Tolentino
Tolentino was
was disqualified from
from sitting on the case.
case. Id. at 8-9.
Id at
Lastly, on June 12, Lastly, 12, 2024, the Honorable Maria T.
T. Cenzon issued a Decision and Order Order
OAG's Statement
Denying the OAG's Statement of Objection in People of of Objection of Guam Guam v.
v. Richard YY Ybanez,
Ybanez, CF0447-
23 (Super. Ct. Guam June 12, 12, 2024). In that case, on May 1, 2024, the the OAG objected
objected for the first
time to Judge Tolentino Tolentino presiding over the matter matter due
due to
to his
his aforementioned
aforementioned relationship relationship with
Ybanez, CF0447-23 at 5-6. Sitting as the recusal judge, Moylan and the Moylan Children. Ybanez, judge, Judge
4
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of
ofGuam
Guam v. Jato Ch
v. Devin Jabo iguina and Chiguina and Rose
Rose Lin Boca
Baca
Cenzon found found that that Judge Tolentino
Tolentino is not
not compelled
compelled to
to disclose
disclose his
his relationship
relationship with Moylan
Moylan
under under 77 GCA 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.
Judge Cenzon provided provided several
several reasons justifying Judge Tolentino's omission, including
(1) that Moylan admitted during during the meeting with Judge Tolentino Tolentino and
and other
other staff
staff members that
he per ceived no perceived no continuing continuing conflict
conflict r requiring
equir ing Judge
Judge TTolentino's
olentino's disqua lifica tion, (2) tha disqualification; that
Moylan's Moylan' s and and Doris's
Doris' s relationship,
relationship, which
which ended
ended in
in 1997,
1997, ended
ended sufficiently
sufficiently far
far in
in the
the past
past as
as to
not currently be be a concern
concern when
when viewed objectively,
objectively; (3)
(3) that the Moylan Children, who are Judge
Tolentino's stepchildren, Tolentino's stepchildren, are all adults adults living
living on their own;
own, and (4) in the
the small legal community
of Guam, for Judge Tolentino to disqualify of disqualify himself in all cases cases involving Moylan would be "(a)
impractical to to enforce, (b)
(b) negatively impact the efficient efficient administration
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
Finally, on July 18, 2024, 2024, the
the Supreme
Supreme Court of Guam issued an Opinion in In re Arthur
U San Agustin v.v. Superior San Agustin Superior Court Court of
ofGuam, al., 2024 Guam 2, disqualifying Judge Tolentino in Guam, et al.,
that that matter, matter, but but on grounds
grounds that are
are unrelated
unrelated to relationship with Moylan.
to his relationship Moylan. The Supreme Supreme
Courtt of Gua Guam noted
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
July 18,
18, 2024
2024 Opinion
Opinion supersedes
supersedes that
that Order.
Order. San
San
Agustin, 2024 Guam 22 at Agustin, ,i 8.8. The at 'H The San
San Agustin Court noted that Judge Tolentino had previously
himself in that matter because "he, his wife, and his chamber disqualified himself chamber clerk have or had close
relationships with San Agustin and Nadeau, [a real party in interest], concluding this could create
a conflict." Id.
Id atat 1]
,i 4.
4. The
The matter
matter was
was then
then reassigned
reassigned to
to the
the Honorable Presiding Judge Alberto
C. Lamorena III, III, and the defendant objected to Presiding Presiding Judge Lamorena
Lamorena presiding over the
matter. Id. matter. ,i 5. .The at 'll
Id at Theissue issueof
of Presiding
PresidingJudge
Judge Lamorena's
Lamorena's recusal
recusal was
was then assigned to Judge
Tolentino, and Tolentino, and Judge Tolentino Tolentino issued
issued a Decision
Decision and
and Order
Order concluding
concluding that
that Presiding
Presiding Judge
5
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People of ofGuam v. Devin ./Abo Chiguina and Jabo Chiguina and Rose Lin Lin Baca
Boca
Lamorena was not not disqualified. ,r 6.6. Ultimately, disqualified. Id atat 11 Ultimately, the the Supreme
Supreme Court
Court of Guam held that
that
beca us e Judge because udge Tolentino olent ino hadd disqualified qua lified himself
hims elf in
in the
he under lying matter,
underlying t er , he he wa
was aalso
ls
disqualified from sitting as the recusal judge judge and, therefore, vacated his decision and 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 u s t i Court clarified clarified the proper
proper
when aa party seeks to challenge aa recusal judge for cause. Id at procedure when ,r at 1]34.
PROCEDURAL BACKGROUND
The instant matter matter was
was initiated
initiated on
on May
May 9, 2023,
2023, when the OAG
OAG filed
filed aa Magistrate's
Magistrate's
Complaint, accusing Defendant Devin Jabo Chiguina ("Defendant Chiguina")
Chiguina") of
of three
three charges:
charges:
(1) Possession of of a Schedule II Controlled Substance (As a 3rd Degree Felony), Felony); (2)
(2) Assault on a
Peace Officer (As a 3rd Felony), Felony); and (3) Violation of of a Court
Court Order (As a Misdemeanor), Misdemeanor); and
Defendant Rose Lin Back Baca ("Defendant Boca")
Baca") of one charge:
charge: (1)
(1) Possession of
of a Scheduled II
Controlled Substance Substance (As
(As a 3rd 9, 2023, 3rd Degree Felony). On May 9, 2023, the matter matter was assigned
assigned to
eventually indicted
Judge Tolentino. Both were eventually on May indicted on May 15,
15, 2023.
assigned this case, Judge Tolentino held Since being assigned held at at least seven
seven hearings
hearings in
in this matter.
On July 31, 2023, Judge Tolentino issued a Criminal July 31, Criminal Trial Trial Scheduling
Scheduling Order
Order ("CTSO")
("CTSO") for
for
Defendant Chiguina, setting jury selection and trial trial for
for January 17, 2024. After issuance of the January 17,
CTSO, the records reflect that that Defendant
Defendant Chiguina's of the Chiguina's counsel was negotiating a resolution of
matter with the OAG. While Defendant Defendant Chiguina
Chiguina was
was attempting
attempting aa resolution
resolution of
of this matter and
appearing in appearing in front front of Judge
Judge Tolentino,
Tolentino, Defendant Baca Boca was
was on bench warrant for most of the
time time prior ior to OAG's Objection.
to the OAG's Objection. On May May 9,
9, 2024,
2024, Judge
Judge TTolentino
olentino issued an Amended
Criminal Trial Scheduling Criminal Trial Scheduling Order Order setting
setting jury
jury selection
selection and trial
trial for Defendant Chiguina on
August 26, 2024.
On August August 2,
2, 2024,
2024, Judge
Judge Tolentino
Tolentino held
held aa Further
Further Proceedings
Proceedings hearing
hearing noting
noting that
that
6
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People of of Guam v.v. Devin
Devin Jabo
Jato Chiguina
Chiguinaand
andRose
Rose Lin Boca
Baca
Defenda nt Chiguina Defendant C higuina was wa s in
in cust ody and
custody nd had not met wit not met hisa tattorney.
h his with t or ney. Judge Judge TTolentino
olent ino
remanded remanded him until until the
the next
next scheduled
scheduled hearing.
hearing. On
On August
August 9,9, 2024,
2024, aaFurther
Further Proceedings
Proceedings
hearing was held. As Defendant Chiguina's attorney was not present and had not met with him,
that the Pretrial Conference would go forward on August Judge Tolentino remanded and noted that
21, 2024. Pretrial Conference, 2024. At the August 21, 2024 Pretrial Conference, Judge Tolentino was informed that a plea
place for
agreement was in place for Defendant Defendant Chiguina.
Chiguina. As
As aa result,
result, Judge Tolentino
Tolentino vacated the jury
selection and selection and trial date and set a Further Proceedings September 9, 2024.
Proceedings hearing for September
August 23, On August 23, 2024, 2024, the
the OAG
OAG filed
filed their
theirObjection,
Objection, stating
stating that
that "disqualification of "disqualification of
Judge Tolentino Judge olentino from this and any from this any other
other matter
matter involving
involving Moylan is required"
required" due to
to their
their
familial relationship. Objection at 7.
7. The
The OAG
OAG argues that "[a]
"[a] reasonable
reasonable person
person would
would presume
thatt Judge Judge TTolentino's oientino's personal
sona l relationship
ela tionship with
with [AG]
[AG] Moylan
Moyla n and his pr
nd his prior years spent ior yea spent
disqualifying himself disqualifying himself from 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
filed numerous identical objections to Judge Tolentino
over many
presiding over many criminal matters. 1 However, criminal rnatters.l However, the the Court
Court takes
takes judicial notice2 of judicial noticed of the
the fact
fact that,
that,
to date, the OAG OAG has
has not
not filed
filed obi
objections
sectionsininall
allof
ofits
itscases
casesbefore
before Judge
Judge Tolentino,
Tolentino, and instead is
1 1 This Court has been This Court been previously previously assigned
assigned toto hear
hearthe recusalof
therecusal ofJudge
JudgeTolentino
Tolentino in several
several cases
cases in
in which
which
the OAG has filed OAG has filed identical statements of identicalstatements of objection, objection, including, but not limited limited to,
to, the
thefollowing: of following: People of
Guam v. Peter Pangelinan Reyes Reyes Jr., CF0419-24 CF0419-24 (Super.
(Super. Ct. Guam Aug. 5, 5, 2024), 2024); People of of Guam
Guam v. v.
Jamielynn Jamielynn Pangelinan Cabrera, Cabrera, CF0439-24 (Super.
(Super. Ct.
Ct. Guam July 30,
30, 2024),
2024); and
and People
People of
of Guam v. v.
Brian Jake Brian Jake Cepeda Cepeda Alano, CF04l1-24
CF0411-24(Super
(Super Ct.
Ct. Guam
Guam July
July25,
25, 2024).
2024).
2 Guam Rules of Evidence ("GRE") Rule 201 governs judicial notice of of adjudicative adjudicative facts.
facts. "A judicially
noticed fact must be one not subject to to reasonable reasonable dispute
dispute in
in that
that itit isis either
either (1)
(l) generally known within the territorial jurisdiction jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy accuracy cannot
cannot reasonably
reasonably bebequestioned."
questioned." GRE
GRE 201(b).
20l(b).
7
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People 0/'Guam
of Guam v. Devin Jabo
Jabs Chiguina
Chiguina and
and Rose
Rose Lin Boca
Baca
. . . 3 in certain
proceeding in matters. 3 certain matters.
In response response to the OAG's
OAG's Objection,
Objection, Judge Tolentino Tolentino issued
issued his Answer on
on August
August 28,
2024, denying that that his
his disqualification
disqualification was
was required
required in
in this
this case. Answeratat1],r 35. In support of case. Answer of
his position, Judge his position, Judge Tolentino olentino cites
cites to
to the
the meeting that
that he and
and Moylan
Moylan had
had r regarding their
egar ding their
potential conflict, and the fact that Moylan stated that he perceived no disqualification. ,r Id atat117.
disqualification. Id
Further, Judge Tolentino states that the the Moylan Children have "reached majority and adulthood
°°Id.
and have been residing at their own residences."
This matter was assigned assigned to this Court on August 29, 2024, for the limited purpose of of
Tolentino's recusal.
deciding Judge Tolentino's recusal.
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 in states 11111:
full:
Any Judge shall disqualify himself herself in any proceeding in himself or herself
which his oror her
her impartiality
impartiality might
might reasonably
reasonably be questioned, questioned, but
if, following complete disclosure to all parties in the if, the proceeding of of
the reasons for disqualification, the reasons disqualification, all all parties parties agree
agree to having the
to having
Judge inu e to
continue
dge cont t o sitit in in the pproceedings,
oceedings , he
he or she need
need not
not
disqualify himself
himself or herself.
33 According According to to the
the Superior Court of
Superior Court of Guam's Guarn's Weekly Calendar forfor the week ofof September September 30,
30, 2024,
2024,
Judge Tolentino continues to have a full calendar of cases moving forward which list the OAG as counsel. Judge Tolentino remains scheduled to to hear hear progress
progress hearings,
hearings, further
further proceedings, motion hearings, pretrial conferences, trial change of pleas, conferences, change pleas, return return of
of warrants,
warrants, and competency
competency hearings
hearings in
in criminal
criminal matters
matters
involving the OAG. The Superior Court of Guam's Weekly Weekly Calendar Calendar is posted
posted publicly on the Judiciary of Guam's website, website, available
available at https://www.guamcourts.org/Calendar/images/Weeldy-AET.pdf.
eek:ly-AET
The Court also notes that in People People of Guam v. v. Martin Martin Park,
Park, CMOl98-24,
CM0198-24, the the OAG initially initially filed its
Statement of of Objection to Judge Tolentino presiding over the case on August 18, 18, 2024. Stmt.
Stmt. of Objection
(Super. Ct. Guam (Super. Ct. Guam Aug.
Aug. 18,
18, 2024).
2024). However,
However, after
after Judge
Judge Tolentino
Tolentino filed
filed his
his Answer to
to which the OAG
filed a Response, the OAG then filed its Response, the its People's People's Notice
Notice ofofWithdrawal
Withdrawal of of Objection Objection on
on September
September 5,
2024. Upon the OAG's filing of its filing of its Notice of Withdrawal of Objection, of Withdrawal of Objection, this Court remanded the case back to Judge Tolentino. Order (Sept. 9, 2024).
8
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23, CF0330-23; People of of Guam v.v. Devin
Devin Jabo
Jato Chiguina
Chiguinaand
andRose
Rose Lin Boca
Baca
When grounds When grounds for for disqualification exist, 77 GCA disqualification exist, GCA §§ 6106 6106 requires
requires aa judge
judge to
to disclose
disclose any
any
facts that disqualify facts that disqualify him him under Section 6105. If aa judge fails fails to
to declare
declare his
his disqualification
disqualification as
as
required, 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 Justice or Judge
the Justice Judge on the ground of his ground his or
or her
her disqualification
disqualification shall
shall be
be presented
presented at the the
earliest practicable opportunity after practicable opportunity after his her appearance his or her appearance and and
discovery discovery of the facts constituting constituting grounds
gr ounds ofof the Justice's ·or the Justice's or
Judge's disqualification, and in any event before the commencement of commencement ofthe
the hearing
hearing of
ofany
any issue
issue of
of fact
fact in the
the action
action or
proceeding before such Justice or Judge.
77 GGCA C A §§6 16107 0 7 (emp ha s is a added).
(emphasis dded). IfIfa ap aparty r t y fafails
ils t otoobobject
ject a tat hethe"ea"earliest r lies t p rpracticable
a ct ica b le
opportunity" after opportunity" discovery of after discovery of the facts facts which disqualify
disqualify aa judge,
judge, that
that failure
failure "constitutes
"constitutes a
Dox v. Superior Court of
waiver." Van Dex of Guam, i! 45. As Guam 77 1145.
Guam, 2008 Guam As such, such, when
when a party remains
silent silent on on aa known known disqualification
disqualification pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105( a), the
the party
party waives
waives their
their right
right to
to
later object to the judge presiding.
presiding. People .of
of Guam v.
v. Win,
Wia, 2020 Guam
Guam 17 i/ 28.
17 1128.
rule that
"The rule that a request for disqualification disqualification should be submitted prior to any hearing in
the matter before before the
the challenged
challenged judge the principle judge 'rests on the principle that a party party may
may not gamble on a
favorable decision' .... favorable decision' .... Thus, Thus,aastatement
statement of
of objection
objection is normally timely if if it is submitted prior
to to any hea hearing befor beforee the cha
challenged
llenged judge in the
judge in the ma
matter." Guam 7711,i 46.
Dox, 2008 Guam
tter Van Dox, 46.
(emphasis added) (citing (citing to
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 based on information
information known months
months earlier).
earlier).
Importantly, the Importantly, the recusal recusal statute
statute "is
"is not
not intended
intended to
to 'bestow veto power over judges or to
be used as a judge shopping used as device." San shopping device."' San Agustin, Agustin, 2024 Guam ,i 24 (quoting Guam 2 'll (quoting People v.
v.
Camaddu, 2015 Camaddu, 2015 Guam ,i 80).
Guam 22 'll 80). Likewise, courts should Likewise, courts should avoid avoid outcomes
outcomes which
which lead
lead to
to the
the
Camaddu, 2015 Guam 22 ii,i 80 (stating manipulation of the criminal justice system. See Camaddu, (stating that if a
9
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People of ofGuam
Guam v.
v. Devin Jato
JaboCh iguina and
Chiguina and Rose
Rose Lin Boca
Baca
trial court trial court recused refused itself "every time itit receives 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 OAG Failed to Object Qbject at the Earliest Practicable Practicable Opportunity
As noted, even when when aa judge
judge fails
fails to
to disclose
disclose any
any potentially
potentially disqualifying disqualifying facts,
facts, aa party
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 of the facts facts constituting
constituting the
the ground of the judge's judge's disqualification
disqualification or
else that party waives their right to to bring
bring an
an objection.
objection.
Here, although Judge Tolentino did not not disclose
disclose any
any facts,
facts, the OAG
OAG was
was still
still required to
as possible
bring its objection as soon as possible after after discovery of
of the
the facts.
facts. The
The Court
Court understands
understands the
OAG's position OAG's position to be be that
that Moylan is generally involved involved in the OAG's cases, cases, even if he is not
lead counsel on a matter. Taitingfong, in which she matter. The OAG cites to Judge Iriarte's Decision in Taitingfong,
wrote, wrote, "Deputy Attorney General Gloria Rudolph clarified clarified that Attorney
Attorney General
General Moylan is
is
agreements and
consulted on general case strategy and plea agreements and that that itit would
would be
be incorrect
incorrect to
to say
say that
he is not personally involved in this case." Objection at 6. Given that Moylan is the head of of the
OAG, and that he is involved in matters which the OAG OAG prosecutes,
prosecutes, the OAG was aware of of the
facts regarding Moylan's Moylan's and
and Judge
Judge Tolentino's
Tolentino'srelationship
relationshipby
byJanuary
January2023
2023.
Despite being aware of Judge Tolentino's Tolentino's and
and Moylan's
Moylan's relationship
relationship by
by January
January 2023, in
its Objection, the OAG does not Objection, the not directly directly address
address why
why this
this Court
Court should
should consider
consider its
its Objection
Objection
timely. Instead, the OAG OAG argues
argues that
that disqualification
disqualification is appropriate because the Supreme Court appropriate because Court
of Guam issued an Opinion in San Agustin on July 18, of 18, 2024 which provided additional additional grounds
on which to require disqualification. Objection Objection at 5.
10
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of
ofGuam
Guam v. Devin Jato
Jabo Ch iguina and
Chiguina and Rose Lin Boca Rose Lin Baca
A. The C o
Court V
Views tthe OOAG's
A G ' OObjection
bj io n in tthe CContext o nt ooff JJudge
udg
Tolentino's Relationship with Moylan Tolentin0's
Not only did the OAG OAG fail
fail to
to address
address the
the timeline
timeline of
ofits
its specific
specific Objection
Objection in
in this
this case,
case,
the OAG also failed to address the timeline of of its Objection in the broader context of of the history
Tolentino and Moylan.
between Judge Tolentino Moylan. In doing so, the OAG seemingly seemingly would have
have the
the Court
Court
view tthis view matter his ma t t er aass aan n isisolated objection
ola t ed ob ject ion r a ther her than
ha n in tthe
he lalarger context
r ger cont Moylan's of M
ex t of oyla n's
relationship with Judge Tolentino.
Thus, hus, the the Court must fir
first
st ,analyze
analyze whether is appr whether it is appropriate iate to
to view this
this matter
matter in
in
isolation or to isolation larger context to consider the larger context of the the history
history of
of the
the relationship
relationship between
between Judge
Judge
Tolentino and Tolentino and Moylan Moylan since
sinceand
andprior
priorto
to January
January2023
2023.
i. The Van Dox Standard Is Is Not Applicable
When the Supreme Court Court of
of Guam announced
announced in
in Van
Van Dex that a statement of Dox that of objection is
"normally timely "normally timely if it is is submitted
submitted prior
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 v.
v. Superior Court, 191 Cal. App. 3d Court, 191 ad
22, 236 Cal. Rptr.
Rptr. 193
193 (Ct.
(Ct. App.
App. 1987).
1987). In Hollingsworth, the California Court of Appeals found In Hollingsworth,
that counsel presented presented its
its statement
statement of
of disqualification
disqualification at
at the
the earliest
earliest practicable
practicable opporhinity
opportunity
because the because the case Court found case had only recently been assigned to the challenged judge, and the Court
that it would be unreasonable and impracticable to require a party to challenge a judge prior to
knowing which knowing which judge judge will
will hear
hear the matter. Hollingsworth, Cal. Rptr. 193, 196.
Hollingsworth, 236 Cal.
Further, Fur ther , when when the
the Va
Vann Dox Court wr
Dax Cour wrote thatt the ote tha the timeliness timeliness rrequirement
equir should be
"liberally construed to promote justice," "liberally justice," itit cited to another another California case: Eagle Maintenance &
Supply Co. v. Superior Court, 16 Cal. Rptr. 745 (Dist. Ct. App. 1961). In that case, the California Court, 16
Court of Appeals notes that the matter had been assigned assigned to
to aa department
department of
of the
the superior
superior court,
court,
but not yet to a specific judge.
judge. Eagle Maintenance, 16 Ca. Rptr. 745, 747. Thus, the court stated, Maintenance, 16
11
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of Guam v.
a/Guam v. Devin Jabo Chiguina Chiguina and
and Rose Lin Baca
Rose Lin Boca
"it would place place an undue hardship upon a litigant or his his counsel
counsel to
to compel him to know before
the first first scheduled scheduled trial
trial setting,
setting, what
what judge
judge would be assigned to try his case ...."" Id Id.
The h e llogicc iin Hollingsworth Hollingsworth 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
the unique
unique situation
situation before
before this
this Court.
Court.
While the OAG ma While the mayy not not ha ve known
have known tha t Judge
that ssigned the be aassigned
would be
olentino would
Judge TTolentino the aabovebove -
captioned matter, matter, itit was
was aware
aware by January
January 2023
2023 that
that Judge
Judge Tolentino
Tolentino would be assigned assigned some
cases involving the cases involving the OAG, OAG, considering
considering Judge
Judge Tolentino
Tolentino isis one
one of
of four
four criminal judges4 in the criminaljudges
Superior Court of Guam and the OAG OAG files
files aa significant
significant number
number of
ofcriminal
criminal cases.
cases. Further,
Further, the
facts that give facts that 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 Tolentino and
and Moylan.
Moylan. Therefore,
Therefore, this is not a
circumstance in "normal" circumstance in which a party must wait to see which judge is is assigned
assigned and then, if
if
there is a conflict, challenge challenge that judge.
judge.
Instead, krstead, a more more relevant case
case to
to review in this matter is People of of Guam v.
v. Win.
Wia. There,
the he PPublic Defender Service lic Defender vice Corporation or 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,r 27. The 2020 Guam 17 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, and the fact that they they remained silent in Win Wia rendered his objection waived and
untimely. Id.
Id
Like in Win, is more appropriately viewed in its broader context regarding the Wia, this matter is
of the
parties' previous knowledge of the facts.
facts. Here, the broader
broader context requires the Court to to review
Judge Tolentino's and 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
44 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 the four criminal judges in the Superior Superior Court of Guam, the Supreme Court of Court of Guam created Court 8, which is comprised of both criminal and non-criminal cases. Court 8 is assigned to the Honorable John C. Terlaje.
12
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23,' CF0330-23; People of ofGuam v.
v. Devin Jabs
Jabo Ch iguina and
Chiguina and Rose Lin Baca Rose Lin Boca
Judge Tolentino.
ii. Viewing
n g thiss Matter
at i in Isolation
n I so l at i Would
Wo u l d PPermit
ermi t OOutcomes
u t co mes
Contrarv to the Contraryto the Recusal
Recusal Statute's
Statute's Intended Purpose
The recusal statute shall recusal statute shallnot notbe
beconstrued
construedtotopermit
permitjudge-shopping,
judge-shopping,to
tobestow
bestow veto
veto power
power
over judges, or over or to penni permitmanipulation
manipulation of
ofthe
the criminal
criminal justice
justice system.
system. San
San Agustin, 2024 Guam 2
1 24; 1] 24, Camaddu, Guam 2211 80. Thus, the Camaddu, 2015 Guam the Court Court must
must attempt
attempt to
to av
avoid these undesired
oid these undesired
outcomes.
First, if the First, if 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 but allowed Judge
Judge Tolentino
Tolentino to
to sit on any
any matter
matter in
in which
which the
the OAG
OAG did not object, it
would create create a system system in which
which the
the OAG
OAG could
could cherry-pick
cherry-pick which
which cases
cases to
to disqualify
disqualify Judge
Tolentino. Allowing the OAG to determine which which cases
cases itit will
will permit
permit Judge Tolentino to sit on
would clearly promote would clearly promote judge-shopping. See See In re Takeno,
Takano, No.
No. BR
BR 15-00108,
15-00108, 2016 WL 7384603 7384603
Guam Dec.
(D. Guam Dec. 19, 19, 2016)
2016) (opining
(opining that
that allowing
allowing aa party
party to
to "cherry-pick"
"cherry-pick" which
which cases
cases to
to
from would
disqualify a judge from would promote promote judge-shopping).
judge-shopping). Unlike
Unlike aa criminal
criminal defendant,
defendant, who is aa
case with the right to decide whether to different individual in each case to object to aa judge presiding,
the OAG the represents the OAG represents the People of Guam.
Guam. Because
Because the People of
ofGuam
Guam cannot
cannot object
object to
to Judge
Judge
over certain criminal matters but not others, disqualifying Judge Tolentino in Tolentino presiding over
some but some but not not all all cases, without further explanation, is inappropriate.
OAG to
Likewise, permitting the OAG to sit sit on
on known
known facts
facts for
for months
months and
and then
then raise
raise those facts
facts
at any given time to disqualify disqualify Judge
Judge Tolentino
Tolentino could
could bestow
bestow aa veto
veto power
power on
on the
the OAG and
the manipulation allow the manipulation of of the
the judicial
judicial system.
system. For
For example,
example, the
the OAG could,
could, theoretically,
theoretically, hold
facts over Judge these facts Judge Tolentino's head with with the
the constant
constant threat
threat of
of raising them in all
all his cases
after any after unfavorable decision.
any unfavorable decision. In In other
other words,
words, the
the same that prevents same logic that prevents a party party from
from
disqualifying a judge after disqualifying after an an unfavorable
unfavorable decision
decision in
in aa particular
particular case
case likewise
likewise prevents
prevents the
the
13
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People of of Guam v.v. Devin
Devin Jabo
Jato Chiguina
Chiguinaand
andRose
Rose Lin Baer
Baca
OAG OAG from from disqualifying disqualifying aa judge after an unfavorable decision in any case case involving
involving the OAG.
speculating about
Without speculating about the the OAG's
OAG's motive to bring
bring these recently
recently filed objections objections or
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 use these strategies strategies to forum-shop or or manipulate the judicial system system necessitates
necessitates that the
view tthe C ourtt view he OAG's OAG's object ions br
objections oa dly, rrather broadly, a t her tthan ha n in
in isola t ion in
isolation he inst
in t the a nt ma
instant t t er .
matter.
Consequently, Consequently, the Court Court declines
declines to
to find
find that
that the Objection
Objection was
was brought
brought at
at the
the earliest
earliest practicable
oppor tunity solely opportunity solely because beca use itit was
wa s filed
filed promptly
omptly after
fter the
the matter
tter wass aassigned
ssigned to Judge
Judge
Tolentino.
B
B. The
The Supreme Court of Guam Issuing Its Its Opinion in San San Agustin Does
Does
Not Justifv
Justify the OAG's
OAG's Failure
Failure to
to Object
Object atatthe
theEarliest
Earliest Practicable
Practicable
Opportunity Opportunitv
OAG argues
The OAG argues that that their
their Objection
Objection is timely
timely because
because itit was
was filed
filed shortly
shortly after
after the
the
Supreme Court of Supreme Court of Guam issued its Opinion in issued its in San San Agustin on July 18,
18, 2024,
2024, and San
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 tthat
ha
"[e]mploying the "[e]mp1oying the approach approach set
set forth
forth by
by the Supreme Court,
the Supreme Court, i.e.,
i.e., knowing all the facts knowing all facts and 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 disqualified judge
judge in any case
case where AG
77
involved. The
Moylan is involved. The basis basis for
for Judge
Judge Tolentino's
Tolentino's prior
prior disqualification
disqualification hasn't changed.
changed."
Objection at 5. Objection
San Agustin is distinguishable from the the instant
instant matter
matter for
for several
several reasons.
reasons. First,
First, that case
address whether an did not address an appearance of bias appearance of bias exists exists based on Judge
Judge Tolentino's
Tolentino's relationship
relationship
with Moylan. Second, the San Agustin Court held that Judge Tolentino was disqualified disqualified in that
that
matter as as the the recusal
recusal judge
judge because
because he disqualified
disqualified himself in the underlying case. Here, Judge
Tolentino has not disqualified himself in the underlying himself in underlying matter matter and is not the recusal judge.
and he is judge.
14
DECISION AND ORDER DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF OF OBJECTION CF0330-23; People of of Guam v.v. Devin
Devin Jabo
Jato Chiguina
Chiguinaand
andRose
Rose Lin Boca
Baca
Moreover, Moreover, the the Supreme ofGuam
Supreme Court of Guam first issued issued its Order inSan
San Agustin on
on December
2023, which 5, 2023, which addressed addressed the
the same issues related to issues related to Judge
Judge Tolentino's disqualification disqualification as
as the
the
recusal recusal judge as the San Agustin July 18, Agustin July 18, 2024
2024Opinion,
Opinion,albeit
albeitin
inless
lessdetail.
detail.The
The OAG
OAG does
does not
distinguish why the July distinguish why July 18, 2024 2024 Opinion in San
San Agustin
Agustin triggered its
its mass
mass objection, but
but the
December 5, 2023 Order did not. December not.
Therefore, the Therefore, the Court Court declines to find that declines to that the the issuance of the
issuance of the Opinion in San San Agustin
Agustin
changed the circumstances changed the circumstancesallowing allowingthe
theOAG
OAG to timely
timely tile
filenumerous
numerous statements of objection statements of
against Judge Judge Tolentino Tolentino based on previously previously known
known facts
facts..
c. C. The
The OAG
OAGHa_s We_iygd_its
Has Waived Objectionby its Objection bySilence
Sjleng
As discussed As previously, parties discussed previously, partiescan canwaive
waiveaajudge's
judge's 77GCA
GCA §
§ 6105(a)
6105(a) disqualification by disqualification by
remaining silent after remaining silent after learning learning of
of potentially
potentially disqualifying facts.
facts. Win,
Wia, 2020 Guam 17
17 1128. This
~ 28. This
"silence-as-waiver" rule rule renders
renders an
an objection
objection as
as waived
waived when
when based
based on
on information
information previously
known to the known to the parties parties through separatelitigation.
through separate litigation.Id.
Id.(finding
(finding that
thatPDSC
PDSC waived
waived by silence
silence
because they had because they hadraised raisedthe
theissue
issueof
ofthe
thejudge's
judge's disqualification in in previous cases
cases and,
and, therefore,
were aware of the issue).
issue).
Further, in Win, Further, Wia, the the Supreme
Supreme Court
Court of Guam
Guam declined
declined to
to answer
answer whether
whether "the most
most
egregious" egregious" conflicts conflicts are livable
waivablethrough
through silence,
silence, but found that, in that case, case, the silence-as-
waiver rule applied because because counsel had been aware of of the
the conflict
conflict and
and waited
waited over a year to
object. Id Id.atat~ 1130.
30.
Here, Here, like like in
m Win,
Wia, the
the OAG waited
waited over
over aa year
year to
to file
fileits
itsfirst
firstobjection
objection to
to Judge
Judge
Tolentino. The Tolentino. The OAG OAG was
was aware
aware of
ofall
allthe
thefacts
factsregarding
regarding Judge
Judge Tolentino's
Tolentino's and
and Moylan's
Moylan's
relationship by January relationship by January2023, 2023,yet
yetwaited
waiteduntil
untilMay
May 1,
1, 2024
2024toto file
file its first objection
objection to
to Judge
Judge
Tolentino in in Ybanez.
Ybanez. Moreover,
Moreover, Judge
Judge Tolentino
Tolentino was
was assigned
assigned to
to this
this matter
matter on May
May 15,
15, 2023,
2023,
15
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People People ofofGua/11
Guam v.v.Devin
DevinJabo
Jabs Chiguina
Chiguina and Rose Lin
Lin Baca
Each
and for almost a year Judge Judge Tolentino
Tolentino held
held numerous
numerous hearings in
in which the OAG was
was involved,
involved,
and, in fact, fact, was was scheduled
scheduled to
to go
go to
to trial
trial with
with Defendant
Defendant Chiguina
Chiguina right
right before
before the
the Objection
Objection was
was
filed. Further, the OAG Further, the OAG continues to proceed continues to proceed in aa number number of
of cases
cases before
before Judge
Judge Tolentino
Tolentino
without objecting. Thus, the objecting. Thus, the Court Court finds
finds that the silence-as-waiver rule applies, silence-as-waiver rule applies, and and the
the OAG
OAG
waived its ability to to object to
to Judge
Judge Tolentino
Tolentino based on his relationship with Moylan.
The Court need not answer whether whether Judge Tolentino
Tolentino isis disqualified disqualified from
from hearing
hearing matters
involving Moylan because even ifif he he is,
is, the
the OAG
OAG has
has waived
waivedits
itsright'
right' to
to object.
object. Therefore,
Therefore, the
the
Court denies the OAG's OAG's Objection
Objection on
on the
thebasis
basis that
that itit was
was not
not brought
brought atat the
the earliest
earliest practicable
practicable
opportunity. oppmtunity.
CONCLUSION
For the
the aaforementioned
for ementioned reasons,
sons, the
the Cour
Court her
hereby DENIES the
the OAG's
OAG's Objection.
Objection.
Consequently, Judge Tolentino may continue to preside over over the above-captioned
above-captioned matter.
matter.
SEP
SO ORDERED: - ' - - ~SEP 33U02825 202!~
~~---'-=-'----
HONOR NEO D'AN
~R A. GL@1ERREZ
REZ
Judge, Superior Comt
Conn of
of Guam
senvlce vIA Sl!llVICI! VIAe-MAIL l!-MAIL
acknowledge that an acknow•edge that an elecxromc electroruc.
CoD't on Cony r~ orig-na* 0 f the or1g,na 1 wa!> ma,1ea to wasee mauled to
/MI /rob,t f/61 /Jfl) 2 . nA~14f~ \
D,. /J/ • Date "/-Zwf 3d·'JJI fTune. ume./ /I/17<f0I». "!Ji~,-,..
415 6/M6 Afllt ~rlt:ib A-, Oepu('y cie,k. De-purv clerk .Supe,1or SuperiorC.ourt of Guam
Coin at