People v. Dela Cruz

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 77 PEOPLE OF GUAM, GUAM, ) CRIMINAL CRIMINAL CASE no.

NO.CF0532-24

CF0532-24

))

8 ) AMENDED

9 vs. )) DECISION AND ORDER DENYING DENYING

) THE OAG'S STATEMENT STATEMENT OF OF

10 JOSHUA KURT KURT DELA

DELA CRUZ, )) OBJECTION OBJECTION 77 GCA

GCA §§ 6107

6107

11 11 DOB: DOB:12/10/1987 12/10/1987 ) AND AND MOTION TO DISQUALIFY

DISQUALIFY

))

12 12 Defendant. )

)

13 13 INTRODUCTION

14 14

15 15 matter is This matter before the is before the Honorable

HonorableMaria

MariaT.

T. Cenzon

Cenzon on

on the_

the Office

Office of

of the

the Attorney

Attorney

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

(the "Office the Attorney Attorney General"

General" or

or the

the "OAG")

"OAG")Statement

Statementof

ofObj action 77 GCA

Objection GCA §§

17 17 6107 and Motion 6107 and Motion to to Disqualify

Disqualify (the

(the "Objection")

"Objection") filed on

on August

August 2, 2024, by Acting 2024, by Acting Chief

18 18 Prosecutor Gloria Gloria Rudolph

Rudolph(hereinafter

(hereinafter"Chief

"Chief Rudolph").

Rudolph"). The OAG

OAG objects

objects to

to Judge Alberto E.

Judge Alberto

19 19 20 Tolentino's (hereinafter (hereinafter "Judge

"Judge Tolentino") competency competency to

to preside

preside over

over the

the above-captioned

above-captioned

20

21 21 matter under77GCA matter under GCA §§ 6105 6105 and requests his

and requests his disqualification disqualification pursuant pursuant toto77GCA

GCA §§ 6107.

6107.

22 Having considered considered the Objection, the Answer, the the Response,

Response, as well as

as the

the applicable

applicable

23 statutes andcase statutes and law and caselaw andthe

the relevant

relevantportions

portionsof

of the

the record,

record, this

this Court

Court issues

issues the

the following

following

24 Decision Decision and and Order DENYING the Office Office of

ofthe

the Attorney

AttorneyGeneral's

General'srequest

request to

to disqualify

disqualify Judge

Judge

25 26 Tolentino and reassign Tolentino and reassign this case.

26

27

28

People People v. Dela Cruz,

v. Dela Cruz, Criminal

Criminal Case

Case No. CF0532-24

Amended Decision and Amended Decision and Order Order Denying

Denying the

the OAG's

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

Objection 77 GCA andMotion Motion to

to Disqualify

Disqualify

Page of23 . Page 1 of23.

l1 FACTUAL BACKGROUND PROCEDURAL AND FACTUAL

2 A. The BriefProcedural The Brief History of Procedural History this Case ofthis andObjection Case and to Judge Objection to Tolentino Judge Tolentino

3 3 Assignment.

4 On July 30, 2024, July 30, 2024, Defendant

DefendantJoshua

JoshuaKurt

KurtDela

DelaCruz

Cruz(the

(the"Defendant") via "Defendant") was charged via 5 . . » u Maglstrate Magistrate Complalnt Complaint with Possesslon Possession of aa Schedule II Controlled Schedule II Substance (As Controlled Substance 3rd Degree (As aa 3rd

6 Felony) Felony)and and appeared

appeared before Magistrate Judge Benjamin Benjamin C.

C. Sison,

Sison, Jr. Magistrate's Hearing.

for aaMagistrate's

Jr.for

7 7 On On August August 1, 1, 2024,

2024, the

the case was assigned,

case was assigned, pursuant pursuanttoto77GCA

GCA §§ 4103,

4103, to

to Judge

Judge Tolentino.

Tolentino. Nth.

Ntc.

08

9 of of Judge Judge Assignment (Aug.

(Aug. 1,1,2024).

2024). On

OnAugust 19,2024,

August19, the Grand 2024, the Jury returned Grand Jury True Bill returnedaaTrue Bill

10 10 indicting the Defendant of of the charge

charge of Possession of a Schedule Schedule II Controlled (As aa Substance (As

Controlled Substance

111 rd Objection.

fileditsitsObj

3rd DegreeFelony).

Degree Felony).Indictment Indictment (Aug.

(Aug. 19,

19, 2024).

2024). On

On August

August2,

2,2024,

2024, the OAGfiled

the OAG section.

12 12 On On August 5, 2024, JudgeTolentino 2024, Judge Tolentinofiled filed his

his Answer

Answer to

to Statement Objection. Ans.

of Objection.

Statementof Stmt.

Ans. To Stmt.

13 13 14 14 ofObjection of Objection (Aug.

(Aug.5,5,2024)

2024)(the

(the"Answer").

"Answer").On

On August

August 2024,this

5,5,2024, Courtwas

thisCourt wasdesignated as the designated as

15 15 Recusal Judge to rule Judge to rule on

onthe

theObjection. Ntc. of-Assignment Objection. Ntc. of Assignment of ofRecusal

Recusal Judge (Aug.

(Aug. 5, 2024). On

On

16 August 6, 2024, issued its 2024, this Court issued CRI .1 Form its CRl.1 Form 33 taking taking the

the matter

matter under

under advisement on the

17 CRl.1 Form 33 (Notice of Hrg. or Submission on Briefs briefs. CR1.1 6, 2024). On August 14, (Aug. 6,

Briefs (Aug.

18 2024, 2024, the People filed a "People's "People's Response

Response to Judge Tolentino's Answer Answer to

to Statement

Statement of

19 19

20 action 7 GCA [sic]" (the "Response").

Objection "Response"). Response (Aug. 14, 2024).

Response (Aug. 2024). Defendant Defendant has not joined

has not joined

2i 21 in in the People's People's Objection

Objection nor

nor otherwise

otherwise sought

sought to disqualify Judge Tolentino.

Judge Tolentino.

22 1. 1. The

TheBasis

Basis of

of OAG's

OAG's Objection.

Objection.

23 The gravamen of the OAG's gravamen of OAG's Objection Objection is

is that

that Judge

Judge Tolentino is disqualified disqualified from

24 24 25 presiding over over all cases involving the cases involving the Office Officeofofthe

theAttorney

AttorneyGeneral

Generalbased

basedupon

upon the

the mandate of

mandate of

25

26 26 7 GCA §§ 6l05(a)

7 GCA 6105(a)requiring requiring the judge to

the judge to "disqualify

"disqualify himself

himself .... in

in any proceeding in

in which

which his ...

27 27 impartiality might might reasonably be

be questioned ...." Objection questioned .... Objection at p. 22 (citing at p. (citing 77 GCA

GCA §

§ 6105(a)).

6105(a)). The

The

28 OAG OAG alleges alleges that

that "knowing

"knowing all

allthe

thefacts

factsand

andunderstanding

understanding the

the context

context involving

involving Judge

Judge

4 People v. Dela Dela Cruz,

Cruz, Criminal Case No. CF0532-24 CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

6107 and Motion to

to Disqualify

Disqualify

Page 2 of

1 · Tolentino's history history of

of disqualifying

disqualifying himself

himself where

where the AG

AG was

was involved,

involved, ititisisclear

clearthat

that Judge

Judge

2 Tolentino is is a disqualified judge

judge in any

any case

casewhere

wherethe

theAG

AGMoylan

Moylan is

is involved." Objection at involved." Objection at p.

3 5. Other than Judge Judge Tolentino's sua sponge past sue

Tolentino's past sponte refusals recusals based

basedupon

uponAG

AG Moylan's

Moylan's biological

4 relationship to his relationship to his stepchildren stepchildren- -the

thelast

lastof

ofwhich

whichwas

wasnearly

nearlytwo

twoyears

yearsago

ago- - the

the OAG

OAG alleges

5

6 no specific facts, asserted specific facts, ofsuch asserted by someone with personal knowledge of such facts, which which purportedly

7 provisions of invoke the provisions ofSection 6105. 1 Instead, Section6105.1 Instead, the theObjection

Objection only iterates the the finding

finding inPeople

8 v. Taitingfong v. Taitingfong, et al., CF0024-24 (June 4,2024)(Iriarte, J.) that al, Superior Court Criminal Case No. CF0024-24 9 Judge Tolentino Judge Tolentino was was disqualified

disqualifiedin

inthat

thatcase

case based

based upon factors considered considered in

in that

that particular case.

10 10 '

111 Moreover, the "Verification" executed by Chief "Verification"executed ChiefProsecutor Prosecutor Rudolph

Rudolph purporting

purporting to be "true and

12 12 correct" also correct" also disavows disavows the

the accuracy

accuracy of "factual

"factual matters

matters averred

averred on information

information and

and belief."

belief."

13 Objection Objection at at p. 8.

14 14 Nevertheless, the Objection identifies two purportedly disqualifying factors, purportedly disqualifying factors, the the first

first of

of

15 15 which places the blame squarely squarely upon the Superior upon the Court of Guam Superior Court Guam and and the

the second

second upon

upon aa

16 16

17 "familial relationship"

relationship" .between

between Judge Tolentino and Judge Tolentino and Attorney Attorney General

General Douglas

Douglas Moylan

Moylan

18 (hereinafter "Attorney General Moylan," "Mr.

General Moylan," "Mr. Moylan"

Moylan"or

or"Moylan")

"Moylan")which

whichpurportedly

purportedlyrequires

requires

19 19 Judge Tolentino to Judge Tolentino to recuse recusehimself,

himself,specifically:

specifically:

20 · (1) The Superior

Superior Court

Court should

should have prevented

prevented Judge Tolentino from Judge Tolentino

21 handling mattersinvolving handling matters involving the the Attorney

Attorney General

General of

of Guam,

Guam, as,

as. he had

had

previously previously disqualified

disqualified himself sue

sua sponge, matters involving from all matters

sponte, from

22 Douglas Douglas B.

B. Moylan

Moylanpursuant

pursuant to

to 7

7 GCA

GCA§§6105

6105 and

and 6106,

6106; and

and

23 (2) (2) The familial

familial relationship. between Judge relationship. between Judge Tolentino Tolentino and

and Attorney

Attorney

24 General General Moylan

Moylan which

which constituted

constituted the grounds

grounds for

for Judge

Judge Tolentino's

Tolentino's sue

sua

sponge sponte disqualifications and have have not

not changed.

changed.[sic]

[sic]

25

26

27 11 The Court finds it significant that the allegations that the allegations purportedly purportedlygiving

giving rise

rise to

to a conflict are only advanced by by Actin Acting

28 Chief ChiefProsecutor Prosecutor Rudolph

Rudolph and

and that no

no Declaration made

made under

underpenalty

penaltyofof perjury

perjurybybyAttorney

Attorney General

General Moylan-wh

Moylan -- who

is the only individual other other than JudgeTolentino than Judge Tolentino who who would

would have

have firsthand

firsthandknowledge

knowledgeof of any

any ongoing

ongoing "close

"close personal

persona

relationship" between between himself

himselfand

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

basisfor

for the

the disqualification

disqualification.

People v. Dela

Dela Cruz,

Cruz, Criminal Case No. CF0532-24 CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

andMotion

6107 and Disqualify Page Page 33 of

23

1 Objection at p. 2 (emphasis in original). 2 Citing Citing to

to the

the Guam

Guam Supreme

Supreme Court case ofSan

case of v. Superior San Agustin v. of Guam, 2 the Superior Court 0fGuam,2

3 posits, "the Superior OAG posits, Superior Court must align its process for assigning assigning judges

judges to the record of

of a

4 prospective judge's judge's history

history of

of disqualification."

disqualification." Objection Objection at

at pp. 6-7. In short, the OAG argues 5

6 that, in assigning cases to judicial officers, the Superior Court of Guam Guam should disregard multiple multiple

7 provisions provisions of the Guam Supreme Supreme Court's

Court's administrative

administrative rule, including the "case assignment"

assignment"

8 rule rule and the rule rule governing

governing the

the disqualification

disqualification of a judicial oficer33 merely judicial officer merely because because Judge

Judge

9 Tolentino had routinely routinely recused himselfinincases reused himself cases involving involving Mr.

Mr. Moylan

Moylan through

through October

October 2022

10

11 1 before the latter and before latter assumed assumed his elected

elected office

office as

as Attorney

Attorney General

General in 2023.

2023. By further further

12 12 implication, the implication, the OAG OAG asks

asks this

this Court

Court to

to find

ind that

that the

the Superior

Superior Court should have ignored the 13 substantive and procedural substantive and procedural disqualification disqualification provisions provisions of

of 77 GCA

GCA §§

§ 6105

6105 and

and 6106

6106 and

and further

further

14 14 omit Judge Tolentino from from the random assignment of of cases which involve the OAG (including 15 15 criminal cases) because because the

the judge

judge previously

previously recused

refused himself

himself from

firm presiding

presiding over

over cases in which

16

17 Mr. represented aa defendant Mr. Moylan represented defendant on the grounds that Mr.

Mr. Moylan "is the father father of

of [his]

[his]

18 stepchildren." Obj stepchildren." action at p. 2.

Objection

19 2. Judge

Judge Tolentin0's

Tolentino's Answer.

20 On August August 5,

5, 2024,

2024, Judge

Judge TTolentino

olent filed

filed his

his Answer

Answer tto

o SStatement

t a t ement of

of Object ion

Objection

21 ("Answer"). His response is lengthy and and detailed,

detailed, and the Court

Court finds the following responses, responses,

22 made under under penalty of

of perjury, particularly relevant relevant to

to this

this Court's

Court's recusal determination:

23

24

25 22 2024 2024 Guam Guam 2.

2. Curiously,

Curiously, the

the first

first "factor"

"factor" has less to do with Judge Tolentino's Tolentino's actions

actions or

or purported

purported inaction

inaction and

seems to be more of of an an action

action to compel

compel the

the Superior

Superior Court to "do" anan act - that that is,

is, omit

omit Judge

Judge Tolentino

Tolentino from the

26 case assignment procedures of of the administrative rule based upon a disqualifying factor. This would seem to be more appropriate under a writ proceeding, possibly before the Guam Supreme Supreme Court,

Court, ironically

ironically akin

akin to the writ proceeding 27 described in detail detail by

by the

the Guam

Guam Supreme Court in San Agustin, the OAG'sOAG's principal ,r,r 35 principal case. See, San Agustin at 111135-

41.

28 33 Administrative Administrative Rule Rule No.

No. 24-001

24-001 (March

(March 6,6, 2024).

2024). Section

Section III of

of AR24-001

AR24-001 establishes

establishes the procedure procedure for theth

assignment of cases. Section IV.A. addresses the assignment of of cases upon the disqualification upon the disqualification of a judge and theth assignment of of the recusal judge.

People v. Dela Cruz,

Cruz, Criminal Case No. CF0532-24 Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement

Statement of Objection 77 GCA ofObjection 6107 and GCA §§ 6107 and Motion

Motion to Disqualify

to Disqualify

Page 4 of23

1 ,-i 6.6. That 11 That at

at Mr. Moylan's

Moylan's request,

request, aa meeting

meeting between

between him

him and

and the

the

undersigned, undersigned, the the undersigned's undersigned's chamber

chamberstaff,

staff, the

the Administrator

Administrator of

of the

the

2 Courts, Courts, andand Mr.

Mr. Moylan's

Moylan's transition chairperson,Mr.

transition chairperson, Mr. Wilfred Wilfred Aflague,

3 occurred in December 2022, 2022;

4 ,-i 7. That 117. That at

atthis

thismeeting,

meeting, Mr. Moylan

Moylanassured

assured me

me and

and the other members in

attendance attendance that thathe heperceived perceivedno no conflict

conflict in his

his election as the Attorney 5 General and the the prosecution prosecution of criminal cases before before the

the undersigned. It was

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

matters that

Moylan Moylan was a lawyer no longer existed, to wit: that during my term as was a lawyer no longer existed, to wit: that during my term as the 7 Magistrate judge I had had routinely routinely recused

reused myself

myselffrom

from all

all matters where Mr.

matters where

Moylan Moylan was was thethe attorney attorney of

ofaa party before me on the basis party before me on the basis that that he was the 8 father father ofof my

my minor

minorstep-children

step-children and

and that

that the

the minor

minor step~children

step-children were

9 members members of and and resided in the household maintainedby household maintained bymeme and andmymy wife

wife

and that

that as

asofof even date,

date, both step-children have now reached majority and and 10 adulthood and and have have been

been residing

residing at their own

own residences

residences inin Guam

Guam and in

ll 11 the U.S. Mainland,

Mainland;

12 ,-i 8.8.That 'H ThatMr.

Mr. Moylan

Moylan never

never made

made an

an appearance as aalawyer appearance as lawyer in this case;

case,

13 13 119. That neither ,-i 9. That neitherMr.

Mr.Moylan

Moylan nor

nor the

the Office

Office of

of the

the Attorney

Attorney General

General hadhad

14 14 ever ever challenged

challenged or

or Objected

objected to me

me presiding

presiding over

over this

this case

case until

until the

the instant

instant

Statement Statement of of Objection Objection and

andMotion

Motion toto Disqualify

Disqualify filed

filed herein,

herein;

15 15 11 12.That ,-i 12. Thatadditionally additionallymovant

movanthashasnot

notexplained

explainedwhy

why or

or how the fact that

that

16 Mr. Moylan

Moylan isis the

thebiological

biologicalfather

fatherofofthe

theundersigned's

undersigned'sstepchildren stepchildren

17 17 requires disqualification disqualification of

ofthe

the undersigned,

undersigned;

18 11 14.That ,-i 14. Thatmy mywife

wife Doris

Doris L.G.

L.G. Tolentino and

and Attorney General

General Moylan

were divorced

divorced onon June

June 13,

13, 1997, and that

1997, and thatthere

therewere

were two

two minor children at

19 the time of of the

the dissolution

dissolution of

ofmarriage,

marriage, to

to wit:

wit: Brandon

Brandon (born

(born 1990)

1990) and

and

20 Angela Angela (born

(born 1992);

1992);

21 11 15.That ,-i 15. Thatmy

mywifewife and

and II have been together since 2001 2001 and thatwe

and that we were

married civilly in married civilly in 2005 2005 and

and eventually

eventually in

in the

the Roman

Roman Catholic

Catholic Church

Church in

22 December December 2023,

2023;

23 11 17.That ,-i 17. Thatsince

sincemy

mywife

wife and

andII have

have been

been together

together II have never observed 24 Mr. Moylan Moylan and

and my wife

wife involved

involvedininanyanysense

sense in

in co-parenting

co-parenting the children of of their

their marriage

marriage asas the

the children

children have

have been

been raised

raised and

and provided

provided with

with

25 protection and care to ensure ensure their

their healthy

healthy development

development intointo adulthood, adulthood,

26 primarily primarily byby my

my wife

wifeand

andme,

me,and

and that

that they are

are in

in fact

fact adults

adults able to conduct

and make

maketheir

theirown

owndecisions

decisionsininlife;

life,

27

28 11 18.That ,-i 18. That based

basedupon

uponthethe foregoing

foregoing averments, the fact averments, the fact that that Attorney

General Moylan is General Moylan is the biological biological father

father of

ofthe

the undersigned's

undersigned's step-children step-children

People v. Dela

Dela Cruz,

Cruz, Criminal Case No. CF0532-24 Case No. CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

andMotion

6107 and Disqualify Page 5 of 11 provides no basis provides no basis for

for disqualification

disqualificationunder

under77GCA

GCA §§ 6105(b)

6l05(b) or

or that

that the

the

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

2 subsection(a);

under subsection (a),

3 3 ,r 19. 1] 19. That

That "[u]nder subsection 6105 "[u]nder subsection 6105 (a), "actual bias"

not "actual

matters isis not

(a), what matters bias"

4 appearance of but "the appearance of bias." Van Van Dox Dox at ,r 32 (citing at 1132 Dizon v.

(citing Dizon Ct.

Super. Cr. v, Super.

5 (People), 1998

1998 Guam

guam 33 11,r 1010n.n.3).3).The appearanceof The appearance judged from bias isisjudged of bias

the the standard

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

6 understands the "contexts understands the "contexts of the jurisdictions, parties, and controversies the jurisdictions, parties, and controversies involved," including such "realities of including such the Guam ofthe system" as Guam judicial system" the as the

7 7 relatively small number relatively small number oflawyers of lawyers in in the

the Guam

Guam bar

bar and

and "the

"the nature

nature of Guam

8 families." Id (citationomitted)

Id (citation omitted).

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

recusal judge carefully not carefully

examine or consider the examine realities that the realities my wife thatmy wife and Mr. Moylan and Mr. Moylan have been 10 divorced for close close to to twenty-seven

twenty-seven years and that years and their children of their

the children

that the

111 manage marriage are are adults

adults living onon their and well their own and majority well over the age of majority and that

that no

no reasonable

reasonable person who knows all all the facts and the facts understands the and understands

12 12 contexts of ofthe parties and controversies involved the jurisdiction, parties in the involved in Guam

the Guam

judicial system that there conclude that

system would conclude exists an there exists an appearance bias appearance of bias

13 13 requiring my disqualification disqualification in this matter. . . . ..

in this

14 14 Answer at ,r,r 6 - 9, 12, Answer at11116-9, 17 -. 19, 30.

15, 17

14, 15,

12, 14,

15 15 3. The

ThePeople's

People's Response.

Response.

16 16

17 17 On On August 14, 2024,

2024,the

theOAG

OAG filed

filed an unsolicited

unsolicitedPeople Response to Judge 's Response

People's 's Judge Tolentino 's

18 18 Answer to Statement of Objection 7 GCA [sic], Statement of [sic],arguing arguing that

that (1)

(1) the

the OAG's

OAG's Objection is timely Objection is

19 19 because because itit was was filed

filed and served upon

uponJudge onAugust Tolentino on

JudgeTolentino 2,2024 August2, one (1)

2024- - one (1) day after the 20 judge was assigned to to preside over this matter on August 1, 2024, and 1, 2024; and (2) JudgeTolentino (2) that Judge Tolentino is 21 biased per se biased per shpursuant pursuantotoCalifornia

CaliforniaCode

CodeofofCivil

Civil Procedure

ProcedureCCP

CCP §§ 170.1, which"specifically 170.1, which "specifically 22

23 states thatjudges states that judgesmarried marriedtotothe

theex-wives

ex-wives of lawyers

lawyers appearing are disqualifiable.99"

appearing before them are

24 24 Response at p. 3.

Response The Response 3. The does not

Response does or contest address or

not address any of contest any the averments ofthe in Judge averments in Judge

25 Tolentino's Answer, but simply repeats repeats that "given the significant that"given and continuing relationship he significant and

26 has withAG has with AG Moylan's Moylan's ex-wife

ex-wifeand

and children"

children" he is disqualified from all cases he is involving Attorney casesinvolving

27 27

28 General Moylan Moylan and,

and, therefore, the Office of the Office ofthe General.

the Attorney General.

People People v. Dela

Dela Cruz,

Cruz, Criminal Case

Case No. CF0532-24

CF0532-24

Amended Decision and Order Amended Decision and Order Denying Denying the

the OAG's

OAG's Statement

Statement of

of Objection GCA §§ 6107 Objection 77 GCA andMotion 6107 and Motion to

to Disqualify

Disqualify

Page 6

6 of

s

l1 DISCUSSION AND ANALYSIS 2 A. Law Governing The Law Governing Judicial Judicial Disqualification Disqualification Is Set Forth in Guam Statute and and In

3 the Model Model Code of Judicial Conduct. /

4 GuamStatutory 1. Guam 1. Statutory Mandates.

Mandates.

5 Judicial are governed Judicial disqualifications are governed by the substantive rules the substantive rulesof

of 77 GCA

GCA §§ 6105

6105 and

and the

the

6 procedural rules of procedural rules of 7 GCA §§ §§6106

6106and

and 6107.

6107. The

The relevant

relevant portion

portion of

ofthe

the disqualification

disqualificationstatute

statute

7 8 Section 6105(b)(5), is Section 6105(b)(5), which which requires

requires that:

that:

8

9 (b) AAJudge Judge shall

shall also

also disqualify

disqualify himself or herself himself or herself in

in the

the following

following

circumstances, but circumstances, butif,

if, following complete disclosure following complete disclosure to all parties parties in

in the

the

10 of the reasons for his or proceeding of the reasons for his or her disqualification, all parties agree to 111 the Judge

having the Judge continue continue to to sit in the the proceedings,

proceedings, he or sheshe need need not

not

disqualify himself or herself:

himself or

12 12 (5) Where he or she or his his or or her spouse, or a person her spouse, within the third person within

13 13 degree of relationship degree relationship to either either of

of them,

them, oror the spouse

spouse of such

14 person:

person:

(A)isisaaparty (A) party to

to the

the proceeding, or an

proceeding, or an officer, officer, director,

director, or

or trustee

trustee

15 15 ofaa party, of party; (B) isis acting (B) acting as

as aa lawyer

lawyer in the proceeding ....4 in the

16 16

17 17 Correspondingly, Section Section 6106

6106 compels

compels aa judge

judge to

to disclose

discloseaadisqualification disqualificationenumerated enumerated under

under

18 18 6105:55 19 Whenever a Justice

Justice oror Judge

Judge shall

shall have

have knowledge

knowledge of of any

any fact or

or facts

facts

20 which, under the provisions of of6105 6105 of

of this Chapter, disqualify disqualify him

him or

or her

her

to sit or

or act as such iN any action or proceeding pending in any action or proceeding pending before before him or or her,

21 it shall shall be his

his or

or her

her duty

duty to

to declare

declare the

the same

same inin open

open court

court and

and cause

cause aa

memorandum thereof

thereoftoto be

be entered

entered in

in the

the minutes. It shall be the duty duty of the

22 clerk clerk to transmit forthwith forthwith a copy

copy ofofsuch

such memorandum

memorandum to to each

each party or

or his

23 or or her attorney who shall have appeared in such suchaction action or

orproceeding,

proceeding, except

such parties asas are

are presented

presented inin person

person oror by

by attorney when the declaration 24 is made. 25

26

27

28 4 4 7 GCA § 6105(b)(5) (emphasis added).

7 GCA § 6105(b)(5) (emphasis added). 5 5 7 GCA § 6106 (emphasis added).

7 GCA § 6106 (emphasis added).

People v.

v. Dela Cruz,

Cruz, Crirnina1 CaseNo.

Criminai'Case No. CF0532-24 CF0532-24

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement

Statement of 6107 and GCA §§ 6107

Objection 77 GCA of Objection andMotion Motion to

to Disqualify

Disqualify

Page 7 of23

1 Ifaa judge If judge fails

failstotodisclose

discloseaadisqualifying

disqualifyingfactor

factorunder

underSection

Section6105,

6105,then,

then,pursuant

pursuant to

2 Section 6107, Section 6107, any party to the action who has has appeared

appeared in

in the

the case

case may

may raise

raise the

the objection to

3

6

competency.6 In this In this regard,

regard, Section 6107

6107 provides,

provides, in relevant part, as follows:

follows :

4 Wheneveraa Justice Whenever Justice or Judge whoshall shall be disqualified disqualified under

under the provisions

5 of this of this Chapter

Chapter to sitsit or

or act

act asas such

such inin any

any action

action or

or proceeding

proceeding pending

pending

6 him or before him or her

her neglects or or fails

fails to

to declare

declare his

his or

or her

her disqualification in

the manner the manner provided

provided by this this Chapter, Chapter, any any party

party to such

such action

action oror

7 proceedingwho proceeding who has

has appeared

appeared therein

therein may present to the the court courtand

andfile

file with

8 clerk a written

the clerk written statement statement objecting to to the the hearing

hearing ofofsuch

such matter or any

trial trial of

of any

any issue

issue of

of fact

fact or

or law

lawin insuch

such action

action oror proceeding

proceeding before

before such

such

9 Justice Judge, and Justice or Judge, andsetting setting forth

forth the

the fact

fact or facts constituting constituting the ground

of of the

the disqualification

disqualification of ofsuch such Justice

Justice or Judge.

Judge. Copies of of such .such written

written

10 statement shall forthwith statement shall forthwith bebe served sewed by by the

the presenting

presenting party on on each each party,

11, or or his or

or her attorney, who hashas appeared in the the action or proceeding and and on 11.

the Justice Judgealleged Justice or Judge alleged in such statement statementto tobe

bedisqualified.

disqualified.

12 12 Within ten Within ten (10)

10) days

days after

after the

the service

service of

ofsuch

such statement above provided, statement as above

13 13 or ten (10) days days after thethe filing ofofany any statement,

statement, whichever is later in time, 14 14 the Justice JusticeororJudge

Judgealleged

allegedtherein

thereinto

tobe

bedisqualified

disqualified may

mayfile

file with the clerk

his or her consent in writing that the action or proceeding continue without 15 15 him or her, or may may file withwith the

the clerk

clerk his

his or

or her

her written

written answer

answer admitting or

denying any

any oror all

all of

ofthe

the allegations

allegationscontained

containedin insuch

suchstatement

statement and setting

16 16 forth any additional

additional fact or facts material material or relevant to the question of his 17 17 or her her disqualification.

disqualification. The The clerk shall shall forthwith transmit

transmitaa copycopy of the the

Justice's or Judge's consent or answer to each party or his or or her attorney 18 who shall have appeared in such action action or or proceeding.

proceeding. Every

Everysuchsuch statement

and and every

every answer

answer shall

shall be verified

verified inin the

the manner

manner prescribed

prescribed for the the

19 19 verification of verification of pleadings.

pleadings. The The statement statement of of a party objecting to the the Justice 20 or or Judge

Judge on thethe ground

ground of ofhis

his or

orher

herdisqualyication

(j,isqualificationshall

shallbebepresented

presented

at at the

the earliest

earliest practicable opportunity after his or or her her appearance

appearance and and

21 discovery of of the facts facts constituting the groundground of the Justice's or Judge'sJudge's disqualyication, disqualification, and and in in any event event before the commencement commencement of the the 22 hearing hearingof ofany

any issue fact in the action or issue offact or proeeeding proceeding before

before such Justice

23 or or Judge.

Judge.

24 No No Justice

Justice or or Judge who shall deny his or her qualification qualification shall

shallhear

hear or

or pass

pass

upon the the question

question of

of his or her own disqualification, but in every case case the 25 question question of the the Justice's Justice's or

or Judge's

Judge's disqualification

disqualification shall

shall be

be heard

heard and

and

26 determined by some other Judge. Judge. The Presiding Presiding Judge,

Judge, oror next senior

senior Judge,

if if itit isis the

the Presiding

PresidingJudge's

Judge's disqualification

disqualification that

that is

is being

being requested,

requested, shall

shall

27 make make such suchassignment assignmentwithin

withinfive

five(5)

(5) days

days after

after receiving

receiving from the clerk

28

66 77 GCA GCA §

§ 6107

6107 (emphasis

(emphasis added).

added).

People v.

v. Dela Cruz,

Cruz, Criminal

Criminal Case

Case No. CF0532-24

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of andMotion 6107 and

GCA §§ 6107

Objection 77 GCA Motion to to Disqualify

Disqualify

Page Page 8 of23 1 the notice that the that the

the statement

statementofof disqualification disqualification has

has been

been filed. In the case

filed. In

of aa Justice's of Justice's disqualification, disqualification, the

the matter

matter shall

shall be

be heard

heard by

by the

the Supreme

Supreme

2 Court constituted without without the questioned

questioned Justice.

3 If Ifsuch

such Judge admits his

Judge admits his or

or her

her disqualification,

disqualification, or

or files his

his or

or her

her written

4 consent that thatthe

theaction

actionor orproceeding

proceeding be tried before another Judge, or another Judge, or fails fails

to file

file the

the answer

answer within the ten within the ten (10)

(10) days

days allowed,

allowed, oror if

if it

it shall

shall be

be

5 determined after the determined after the hearing hearing that

thathehe or

or she

she is

is disqualified,

disqualified, the

the action or

6 proceeding shall proceeding shall be

be heard

heard and

and determined by another another Judge

Judge ofof the Superior

Court who is is not

not disqualified.

disqualified. Such

Such other

other Judge

Judge shall be assigned

assigned in in the

the

7 same manner manner as as the

the Judge

Judgewhowhowas

was disqualified

disqualified was assigned assigned to hear

hear the

case initially.

8

9 2. Model ModelCode

CodeofofJudicial

JudicialConduct:

Conduct: Canon

Canon 3

3

10 10 Canon 3 of the the Model Code of

ofJudicial

Judicial Conducts (the"Model Conduct7 (the "Model Code")

Code") mandates that"[a]

mandates that "[a]

11 11 shall perform

judge shall performthe theduties

dutiesofofjudicial

judicialoffice

office impartially

impartiallyand

anddiligently,"

diligently," and

and3E.(1

3E.(1)(d)(i)

)(d)(i) and

and

12 12 (ii) (ii)of ofthe

the Model

Model Code's

Code's disqualification

disqualification factors mirrorthose factors mirror thoseofof77GCA GCA§§6105(b)(5)(A)

6105(b)(5)(A) and (B):

and (B):

13 13

14 14 E. Disqualification.

15 15 (1)

(1) AAjudge

judgeshall

shalldisqualify

disqualifyhimself

himselfororherself

herselfininaaproceeding

proceedingin inwhich

which the

the judge's

impartiality impartiality might

mightreasonably

reasonably be be questioned, questioned, including

includingbutbut not limited limited to

to instances

instances

16 where: where:

17 (d)

d) the

the judge

judge ororthe

the judge's

judge's spouse,

spouse, or

or aa person within

within the

the third

third degree ofof

relations@* relationship* to either of ofthem, them, or

or the spouse

spouse ofof such

such aa person:

18 (i) is a party to the proceeding, (i) is a party to the proceeding, or or an officer, director or officer, director or trustee of trustee of

19 a party;

party;

19.

(ii) (ii)isisacting

actingas as aa lawyer

lawyer in

in the

the proceeding,

proceeding; ....

'20 ·20 B. B OAG has The OAG haswaived

waiveditsits right

right to

to object

object to

to Judge Tolentino's qualification to preside 21 over cases involving the cases involving theOffice Office of the

theAttorney

Attorney General.

General.

22 As As highlighted,

highlighted,above,

above,Section

Section6107

6107requires

requiresthat

that the

the statement of a party

statement of party objecting objecting to the

23 Judge on Judge on the the ground

ground of his

his disqualification

disqualification shall

shall be presented " the

presented "at the earliest earliest practicable

practicable

24

25

26 77 The The ABA's ABA's Canon

Canon ofofJudicial

Judicial Ethics shall apply to and govern the conduct conduct of

of Judges of

of the Superior Court of Guam.

27 GCA §§ 6103.

77 GCA 6103. The The Model

Model Code

Code of of Judicial

Judicial Conduct

Conduct applicable

applicable in Guam was

in Guam adopted by was adopted by the House of the House of Delegates

Delegates oof

the American BarBar Association onon August August 7,7, 1990,

1990, and

and amended

amended onon August

August 6,

6, 1997,

1997, August

August 10,

10, 1999,

1999, and August

August 12,

12

28 2003. It is hereinafter referred referred to

to as

as the

the "Model

"Model Code."

Code."

v. Dela Cruz,

People v. Case No.

Cruz, Criminal Case No. CF0532-24 CF0532-24

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

OAG's Statement

Statement of Objection 77 GCA ofObjection 6107 and GCA §§ 6107 and Motion

Motion to Disqualify

to Disqualify

Page Page 9 of 23 1 opportunity after lhis or her appearance and discovery Q of the facts constituting the ground of the 2 . . . . . .

Justlce's Justice's Q or Judge's

Judge's dlsquahficatlon,

disqualification, and in any event before the the commencement

commencement of

of the hearing of

of

3 any issue any issue of of fact

fact in

in the

the action or proceeding

action or proceeding before before such

such Justice or Judge."

Justice or Judge." 77 GCA GCA §§ 6107

6107

4

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

Supreme Court

Could in

in Van

Van Dox has confirmed that that statements

statements of

5

66 objection shall "be presented presented at

at the

the earliest

earliest practicable

practicable opportunity after discovery of of the facts

facts

7 constituting the ground for disqualification."

disqualification." Van

Van Dox

Dox v.v Super Cr.

Ct. (Alcorn), ,r (Alcorn), 2008 Guam 7 1]44.

8 Thus, Thus, the controlling controlling law in Guam

Guam "[w]ith

"[w ]ith respect

respect to

to the

the statutory

statutory provision

provision requiring

requiring that

that

9 disqualification disqualification be urged at the 'earliest 'earliest practicable opportunity,'

opportunity,' the intention intention is 'clear

'clear that failure

10 10

11 11 waiver."' Id.

to comply with the provision constitutes aa waiver."' ,r (quoting Caminetti Id 1[45 inetti v.v Pac.

Pac. Mut.

Mai. Ins.

Ins.

12 Co.. of o f Cal.,

f a l 139 P.2d

P.2d 930,

930, 933

933 (Cal.

(Cal. 1943)

1943) (emphasis

(emphasis added)).

added)). AA finding

Ending of

of timeliness

timeliness should be

13 13 construed liberally in the interest of ,r 45 (citing Eagle Maint.

of justice. Id. 1145 Mains. & & Supply Co. v.v Super

Supply Co.

14 Ct., Ct., 16 16 Cal. Rptr.

Rptr. 745,

745, 747

747 (Dist.

(Dist. Ct.

Ct.App.

App. 1961)).

1961)).AAtimely

timely statement

statement of

of objection

objection is

is made

made "prior

15 15 16 16 to any hearing before the challenged challenged judge

judge in

in the

the matter." ,r (citing Hollingsworth, matter." Id. 1146 Hollingsworth, 2366 Cal.

17 17 Rptr.

Rptr. at 195-96). Van Dox also cites to People v. Pariah, Van Dox Panah, where the the court

court held

held aa disqualification

disqualification

18 untimely because the facts facts of the case were known known in

in early

early September,

September, but the moving moving party

party

19 19 waited until the eve of of trial in November

November to

to move

move for

for disqualification. ,r (citing People v.

disqualification. Id. 1146 20 Pariah, Panah, 107 790, 824).

107 P.3d 790,

21

More recently, in Wia, 2020 Guam 17, the Guam Supreme in People v. Win, Supreme Court Court applied the

22

23 "silence-by-waiver" rule mle adopted Union, Inc. v. Arnold, 2017 Guam 10, and held that in San Union,

adopted in that

24 24 "[r]ather than than interpreting

interpreting "agree"

"agree" to

to mean that the parties

parties must expressly agree to waive the expressly agree

25 25 judge's disqualification, we held held that

that remaining

remaining silent

silent constitutes

constitutes waiver,

waiver, at

at least in the context of 26 77 GCA GCA §§ 6105(a), "[t]o avoid 6105(a), "[t]o avoid the

the possibility

possibility of

of parties

parties '1[ying]

'l[ying] in

in wait,

wait, raising

raising the

the recusal

recusal issue

issue

27

28 only after learning the the court's

court's ruling

ruling on

on the

the merits.'"

merits.' " Id.

Id (quoting Phillipe

Phillips v. Amoco Oil Co., Co., 799

People People v. Dela Cruz,

Cruz, Criminal

Criminal Case No.

No. CF0532-24

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

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

and Motion Disqualify

Page 10 of23

1 F.2d 1464, 1464, 1472

1472 (11th Cir. 1986),

(nth Cir. 1986), cert. denied, denied, 481 U.S. 1016 (1987)). Thus, Guam allows for the 2 of Section 6105(b) conflicts by waiver of by the the silence of the party

party who

who sits

sits on

on his

his right

right to

to object.

obi et. Id.

Id

3 at 1] 29.8 4 In his Answer, Judge Tolentino raised the issue of of timeliness,

timeliness, stating

stating "[t]hat

"[t]hat neither

neither Mr.

5

6 Moylan nor the Office of the Attorney Attorney General had ever challenged or objected to me presiding

7 over this case until the statement over of obi statement of objection

sectionand

andmotion

motiontotodisqualify... Answer disqualify..." ,i 9. That is Answer at1]9.

8 to say, the to say, and Mr.

the OAG and Mr. Moylan

Moylan knew since

since their

their meeting

meeting in

in December

December 2022,

2022, that

that Judge

Judge

9 Tolentino would be assigned to preside over over criminal

criminal cases

cases which

which Mr.

Mr. Moylan, as

as the Attorney

10

111 General of Guam, would bring in the name of of the

the People

People of

ofGuam.

Guam. Despite

Despite its

its urging

urging that the

12 12 Court apply the reasonable person standard who has "knowledge ofall "knowledge of all the

the facts,"

facts," it is significant 13 13 that the description of aa meeting the OAG does not challenge Judge Tolentino's description meeting held held between them

14 and their staff in in December,

December, 2022,

2022, where

where the judge

judge and Mr.

Mr. Moylan

Moylan discussed

discussed the

the precise question

question

15 15 exist "in [Mn

of whether a conflict would exist [Mr. Moylan's]

Moylan's] election

election as

as the

the Attorney General and the 16

17 17 osecution of prosecution of criminal cr imina l cases

ca ses before

befor e the

the undersigned"

under signed" and "[i]t was deter nd "[i]t determined

mined that the

the

77

18 underlying my circumstances underlying my recusal recusal in

in matters

matters that

that Mr. Moylan was a lawyer lawyer no

no longer

longer existed."

19 19 Answer ,i,i 6, 7.

at W

Answer at 20 Thus, it is

is uncontroverted

uncontroverted that,

that, since

since 2022,

2022, Mr.

Mr. Moylan

Moylan and

and the

the OAG

OAG knew that Judge

21 Tolentino is assigned Tolentino is assigned by the Superior Court of Guam, applying the Administrative Administrative Rule, to preside 22

23 over criminal cases which are brought in the name of the People of Guam by the OAG, through

24 24 upon the Attorney General Moylan. Based upon the "si1ence-by-waiver"

"silence-by-waiver" rule most recently reiterated in 25

26

27 s8 See See also, also, Clarette

Charette v. Charette,

Clarette, 60 A.3d 1264,1264, 1270-1271 1270-1271 (Maine 2013) (judge Gudge had hired aa party's party's brother-in-law

brother-in-law to

do construction construction work

workforforhim

himand

and his

his daughter

daughter was

was close friends with

with the

the same party's daughter, opposing party same party's party should 28 have raised an objection based upon the based upon the appearance appearanceofof impropriety impropriety before the court issued a judgment judgment unfavorable

unfavorable to

him; the him, the appellate appellate court

court finding

findingthat

thatthe

the facts were known

facts were knownto tothe the party

party because course of because they occurred over the course of twenty twenty-

seven years years while

while all

all were

were living

livingininthe

the same

same small community).

community).

People People v. Dela

Dela Cruz,

Cruz, Criminal Case

Case No. CF0532-24

CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

andMotion

6107 and Disqualify Page 11

11 of

1 Win, barred from Wia, the OAG is barred from complainingcomplaining - for

for the

the first

first time in nearly two years since Mr.

Mr. Moylan

Moylan

2 assumed office - that assumed office that Judge Judge TTolentino

olentino isis disqualified disqualified because

because of

of Mr.

Mr. Moylan's

Moylan's biological

biological

3 relationship to Judge Tolentino's stepchildren. 9 Tolentino's stepchildren.9 4 Although Although the

the Court

Court finds that the

the OAG has

has waived

waived any right

right to

to object

object to

toJudge

JudgeTolentino's

Tolentino's

5

6 qualifications to preside qualifications to preside over matters matters in

in which the Office of the Attorney General and Attorney

7 General Moylan Moylan represent

represent the People

People or

or aa party, because the OAG continues to raise the issue of 8 the "relationship" between Attorney General Moylan and Judge Tolentino/his 9 spouse/stepchildren in in over

over fifty

fifty (50)

(50) criminal

criminalcases

cases assigned

assigned to

to Judge Tolentino,

Tolentino, the Court now

10

111 addresses the addresses substanceofofthe the substance theObj Objection.

section.

12 12 c.

C. Judge Tolentino is not related to Attorney General Moylan either by consanguinity or affinity within any

any degree; therefore, there is no relationship relationship to disclose under 13 13 Law or

Guam Law or the Model Code.

14 14 The threshold

threshold question

question in determining

determining whether

whether Judge

Judge Tolentino

Tolentino isis disqualified disqualified under

under

15 15 Section 6105(b)(5)(A) or (B)

6105(b)(5)(A) or (B) is

is whether

whether he (or his spouse) is related within three degrees to a 16

17 17 party to the party the proceeding proceeding or to aa lawyer lawyer to

to the proceeding.

proceeding. A familial

familial relationship may be relationship may

18 established by consanguinity or affinity. If established by consanguinity, it is a relationship by 19 blood, if established by affinity, ties of blood; affinity, itit exists exists between

between one

one spouse and the consanguinity of of the

20 other. 10 Thus, other." Thus, "consanguinity"

"consanguinity" measures

measures the

the relationship

relationship by blood and "affinity"

"affinity" measures the

21

11

22 relationship by relationship by marriage.

marriage."

22

23

24

25 99 See, See,thisthisCourt's Decisionand Court'sDecision andOrder OrderDenying

Denying the

theOAG

OAG's'sStatement

Statement ofof Objection

Objection andand Motiontoto Motion Disqualy in People Disqualify

v. Ybanez, Ybanez, Superior Court of of Guam Guam Criminal Case

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

which rejects

rejects the

the Objection

Objection file

filed

26 therein by the OAG as procedurally defective.

defective. It is unknown why why the

the OAG

OAG fails

fails to

to acknowledge

acknowledge or or discuss discuss Ybanez,

Ybanez

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

27 10 10 See,generally, See, generally, 46

46 Am.

Am. Jr.

Jr. 2d Judges §§ 112 (Aug. 2024).

2dJudges

11 11 Id.Id (citing (citing Alabama State Personnel Alabama State PersonnelBd.

Ba V. Garner, 4 So.3d 545 (Ala. Civ.

Civ. App.

App. Ct.Ct. 2008)).

2008)). See

See also,Suggs

also, Suggs v. State,

State,

28 51 N.E.3d 1190, 1194 (Indiana 2016) 2016) ("Related ("Related by marriage" is commonly referred to as affinity, which as affinity, which isis defined defined as

a

'the 'the connection connection existing

existingininconsequence

consequence of ofmarriage marriagebetween

betweeneach

each of

ofthe

the married

married persons and and the thekindred

kindred of the other.

It It is is distinguished from consanguinity, which denotes consanguinity, which denotes relationship relationshipbybyblood."')

blood."') (citation omitted).

People People v. Dela Cruz,

v. Dela Cruz, Criminal

Criminal Case

Case No. CF0532-24

Amended Decision and Amended Decision and Order Order Denying

Denying the

the OAG's

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

Objection 77 GCA andMotion Motion to

to Disqualify

Disqualify

Page 12

12 of23

1 The disqualification provisions provisions of Section

Section 6105

6105 and

and Canon

Canon33 of

of the

the Model Code bar

bar aa

2 2 judge presiding over matters judge from presiding matters where the judge or his where the his spouse spouse is within three degrees degrees of

of

3 relationship (e.g., relationship (e.g., consanguinity or affinity)

consanguinity or affinity) to to aa party or aa lawyer

party or lawyer in

in the

the proceeding.

proceeding. 77 GCA

GCA §§

4 6105(d) provides 6105(d) provides that that "[t]he degree of

"[t]he degree of relationship relationship is calculated calculated according

accordingtoto the

the civil law

civil law

5

6 system," 12 and system,"l2 and "third "third degree

degree of

Of relationship"

relationship"isis defined definedin

in the

the Model Code as

Model Code as the

the "great-

"great-

7 7 grandparent, grandparent, grandparent, grandparent,parent, parent,uncle,

uncle,aunt,

aunt,brother,

brother,sister,

sister,child,

child,grandchild,

grandchild, great-grandchild, great-grandchild,

8 nephew or nephew niece." 13 Neither or niece."13 NeitherJudge JudgeTolentino

Tolentinonor

norhis

hiswife

wife are

are related

related by

by blood origin

blood or origin

9 (consanguinity) nor (consanguinity) nor by by marriage (affinity) to manage (affinity) to Attorney AttorneyGeneral

General Moylan as Mr.

Moylan as Mr. Moylan

Moylan does

does not

10

11 fall under under any

any of these relationships.

relationships.

12 12 Extending the "third degree of ofrelationship"

relationship" beyond

beyond that

that which

which is contained in the the Model

Model

13 13 include relationship Code to include General Moylan ajirzity (marriage), Attorney General relationship by affinity Moylan is is not

not related

related by

14 14 affinity to either Judge Tolentino either Judge the judge's Tolentino or the judge's spouse.

spouse. The

The "relationship"

"relationship" between

between Judge

Judge

15 15 Tolentino and Attorney General and Attorney General Moylan is best illustrated by the illustrated by the legal

legal maxim

maxim of "ajfinis

"affinis Mei

mei

16

17 ajfinis affinis non est mihi mini affinis" "Arelative a]j'inis" or "A relative of ofmy

my relative

relative by manage

marriage is

is not

not my relative."

relative." Suggs

Suggs

18 v.

v. Stare, State, 51 N.E.3d 1190, 1194-1195(Indiana 1190, 1194-1195 (Indiana2016)

2016)(quoting

(quotingBallentine's

Ballentine's Law

Law Dictionary with

19 19 Pronunciations 45 Pronunciations 45 (3d (ad ed. More clearly ed. 1969)). More clearlystated, stated, in

in determining

determining whether

whether two

two persons

persons are

are

20 related by or manage, by affinity, or marriage,"the "therelationship

relationshipdoes

doesnot

notexist

existwhere

wheremore

morethan

than one

one marriage

marriage is

21 22 required to to establish

establish it." v. State, 169 it." Johnson v. 169 Tex.Crim. 146, 146, 147,

147, 332

332 S.W.2d 321,

321, 322

322(Tex.

(Tex.

22

23 Crim. App. 1960).

Ct. Crim. 1960). Thus, Thus, Judge

Judge Tolentino

Tolentino is not related

related to

to Attorney General

General Moylan within

24 any degree degree of affinity affinity or

or relationship.

relationship.

25

26 12 See, Alabama State Personnel Ba, supra ("The civil law method of computing degrees of kinship is to begin the 12 See, Alabama State Personnel Bd., ("The civil law method of computing degrees of kinship is to begin th 27 count with with one

one of

ofthe

the persons

persons in

in question

question and

and proceed

proceed up

up to

to the

the common ancestor and then down down to the other person, calling it aadegree calling"it degree for foreach

eachperson

person both

bothascending

ascending and

and descending,

descending. The

The number

number thus

thus counted

counted expresses

expresses the degree of

28 kinship.")

kinship.")(finding (findingnonoduty

dutytOtorecuse

recuse because judge and attorney in case because judge were not case were not related

related within

within the required degree).

degree).

13 See 13 SeeModel ModelCode,

Code,Attachment

AttachmentAAatatp.p.1010("Terminology").

("Terminology").

People People v. Dela

Dela Cruz,

Cruz, Criminal Case No. CF0532-24 CF0532-24

Amended Decision and Amended Decision and Order OrderDenying

Denyingthe

theOAG's

OAG's Statement

Statement of Objection 77 GCA of Objection GCA §§ 6107 andMotion 6107 and Motion to

to Disqualify

Disqualify

Page 13 of23

11 the dissolution of Moreover, the of the the marriage between Judge manage between Judge Tolentino's Tolentino's wife and Attorney wife and

2 General Moylan over twenty Moylan over twenty years

years ago

ago also

also terminated the

the"affinity" betweenthe "affinity" between the former former spouses

spouses

3 such marriage.

resulting from such Herrera v.

marriage. Herrera v. Hernandez, Hernandez, 80 Ca1.Rptr.3d Cal.Rptr.3d 491,494

491, 494(Cal. 6th App. 6th

(Cal. Ct. App.

4 Dist. 2008) Dist. 2008) (dissolution (dissolution of

of marriage

marriage terminates

terminates affinity between between parties

parties arising

arising from

from such

such

5

6 purpo.ses of marriage for purposes of determination of of whether a juror

juror is

is subject

subjectto

tochallenge

challengefor

for bias

bias even

even if

if

7 the former the former spouses spouses have child together).

have a child together). Consequently, Consequently, while Judge Judge Tolentino

Tolentino and

and his

his

8 relationship of

stepchildren enjoy a relationship of affinity in the first degree to each other by affinity in by virtue virtue of

of the

thejudge's

judge's

9 manage marriage tototheir mother, 14 there theirmother,14 there is absolutely absolutely no

no relationship

relationship to tiny

any degree

degree between

between Judge

Judge

10

111 1 Tolentino and and Attorney General

General Moylan. Consequently, of Section Consequently, the provisions of Section 6105 6105 do not

12 12 apply.is app1y-15

13 13 D. The The OAG

OAGhas hasprovided

providednonolegal

legalauthority

authoritynor

norfactual

factualaverments

averments necessary

necessary to

to

14 14 establish a ~elationship relationship requiring disqualification disqualification or

or recusal

recusal under

underSection

Section 6105.

6105.

r.

15 15 The OAG OAG relies

relies heavily

heavily on

on the

the decisions

decisions in People vs.

vs. Taitingfong,

Taitingfong, Criminal Case No.

Case No.

I

16 16 CF0024-24 (Jun.

(Jun. 4,

4, 2024)

2024) (Iriarte,

(Iriarte, J.), and in

in People vs.

vs. San

San Agustin, 2024 Guam

Guam 22 in

in support

support of

of

17 17 its Objection. However, However, neither

neither case

case provides

provides legal

legal support

support for

for the

the finding

finding that

that Judge Tolentino

Judge Tolentino

18 is disqualified Hom presiding disqualified from presiding over over cases

casesin

in which

which the

the OAG

OAG iS

is involved,

involved, as

as both

both can

can be

be

19 19

16

20 20 distinguished from from the

thecase

casebefore

beforethis

thisCourt.

Court." Curiously, Acting Chief ChiefProsecutor

Prosecutor Rudolph fails

21

22 14 In re Joseph & Sally Grablich Trust, 984 N.W.2d 517, 552-553 (Mich. 14 In re Joseph & Sally Grablich Trust, N.W.2d 552-553 (Mich. Ct. App. 2021) (citing Bliss Bliss v. Caille Bros.

v. Cai/le Bros.

23 23 Co., 113 Co., 113 N.W. 317 317 (Mich.

(Mich. 1907)

1907)("when

("whena acouplecouplemarries, marries, each

each spouse

spouse becomes related by becomes related by affinity to to the

the other

othe

spouse's blood relatives relatives by

by the

the same

same degree") (emphasis added)).

(emphasis added)).

15 is 24 Attorney General Moylan is General Moylan is not not aa "party"

"party"totothe thecriminal criminalproceeding

proceeding under

under Section

Section 6105(b)(5)(A), but merely a representative of of the the People, who, along with with the the Defendant,

Defendant, are

are the only "party"

"party"totothe

thecriminal

criminalcase.

case. See,

See, People v.

25 Robinson, Robinson, 27 Misc.3d, 635, 637, 898 N.Y.S.2d N.Y.S.2d 438, 439 (Sup.Ct.

438,439 (Sup.Ct. 2010)("the 2010)("the only parties to criminal criminal litigation

litigationare

are the

People, People, represented by the the district district attorney

attorney ofofthe thecounty, county,andandthetheaccused, accused, represented

represented by by assigned assigned or retained

retaine

26 counsel."), coun,sel."); 55 GCA GCA §§ 30103("The 30103("The Attorney

Attorney General

General shall

shall have

have ... the right ... to bring actionaction on behalf of of Guam Gua

representing the citizens as asaawhole wholeforfor redress

redressof ofgrievances

grievanceswhich

whichthethecitizens

citizensindividually

individuallycannot

cannotachieve

achieve....."

..... " As

27 such, 6105(b)((5)(A) does such, Section 6105(b)((5)(A) does not apply apply because Judge Tolentino because Judge Tolentino is not related within within three

three degrees

degrees to a party.

party.

16 16 Inboth In bothcases,

cases,thetheDefendant,

Defendant,not nothe OAGfiled theOAG filedthe

theObjection.

Objection. Moreover,

Moreover, trial courts

courts are

are not bound by the decisions decision·

28 of ofother other trial

trial courts'

courts'ruling

rulingononthe

thesame

same issue,

issue; therefore, this Court does not adopt adopt the theruling

ruling in

in Taitingong.

Taitingfong. Although

San Agustin Agustin is is controlling controllinglawlawininthis thisCourt,

Court,ititisisinapplicable inapplicableininthis

thiscase

casebecause

because itit does

does not involve

involve the

the circumstances

circumstance

addressed addressed by the Guam Supreme Court in Supreme Court inSan San Agustin.

People v. Dela Cruz,

v. Dela Cruz, Criminal

Criminal Case

Case No. CF0532-24

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of andMotion 6107 and

GCA §§ 6107

Objection 77 GCA Motion to to Disqualify

Disqualify

Page 14

14 of23

1 to cite cite or discuss this Court's discuss this Court's Decision Decision and

and Order

Order Denying

Denying the

the OAG's

OAG's Statement of Objection 77 Statement of

2 GCA GCA §6107 § 6107 And

And Motion

MotiontotoDisqualyj/

Disqualify in

in People

Peoplevs.

vs. Ybanez,

Ybanez, Superior Court of Guam Guam Criminal

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

(Jun. 12, 2024) in its Objection despite Ms. Rudolph despite Ms. having filed Rudolph having tiled the

the

4

17

Objection in Objection in that case case and

andbeing

beingserved

servedwith

withthe

theCourt's

Court'sdecision

decisiondenying

denyingthe

thesame.

same."

5

6 1. San Agustin does not not apply to the instant

instant case.

case.

7 The OAG OAGmisapplies

misapplies the

the holding

holding of

ofthe

the Guam

Guam Supreme

Supreme Court in San

San Agustin, which is

8 largely procedural.

procedural. Summarized in its most most simple

simple form, the rule inSan San Agustin

Agustin is that a judge

9 who is is disqualified

disqualified from presiding presiding over

over aa case

case must

must also be disqualified disqualified from serving serving as

as the

10

111 recusal judge in the same case. San recusal judge San Agustin at ,i 36 ("We at ii ("Weexercise

exerciseour

oursupervisory

supervisory authority

authority to

12 12 clarify that a a disqualified

disqualified judge

judge should

should not be appointed as as aarecusal

recusaljudge.").

judge."). San

San Agustin

Agustin does

13 not, not, as as the

the OAG

OAG contends,

contends, extend

extend in any

any way

way to

to support

support aa finding

finding that

that Judge

Judge Tolentino

Tolentino is

14 disqualified in the instant caseor instant case orin

in all

all cases

casesinvolving

involving Attorney General Moylan. Neither Neither that

that

15 15 question nor one remotely like 18 like itit was

was before

beforethe

the Guam

Guam Supreme

Supreme Court inSan

San Agustin.

Agustin.18

16

17

18

19 17 See, Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 And Motion to Disqualv in 17 20 20 See, Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 And Motion to Disqualify CF0447-23 (Jun.(Jun. 12, 12, 2024),

2024), which was served

served upon the the OAG

OAG via viaEmail

EmailononJuneJune 12,

12, 2021, Notice of

2021; Notice ofEntry Entry onon Docket

Docke

21 21 of Decision and of Decision Order Denying and Order Denying the OAG 's Statement the OAG's Statementof of Objection Objection 77 GCAGCA §§6107 And Motion 6107 And Motion to to Disqualy Disqualify (Jun 13,

2024) 2024) which which was served

served upon thethe OAG

OAG viaviamail

mailon on.Tune

June 13, 2024.There

13, 2024. There is is no no explanation for for the glaring omission 22 of this of this Court's Court's Decision in Ybanez Ybanez from the OAG'sOAG'sObjection Objectionand and less

less of

ofananexcuse

excuse forforisisabsence

absence given

given that

that the

th

OAG's Response contains aa brief mention Response contains mention of ofthis this Court's

Court'sDecision,

Decision,without

withoutdiscussion

discussion or orcursory

cursory attempt

attempt at a

23 distinction. See See Response at p. 3. Ms. Rudolph Rudolph is is reminded thatthat Rule Rule 3.3

3.3 of the Guam Rules Rules of Professional Professional Conduct

Conduc

mandates mandates aalawyer lawyer practice

practice candor toward

toward the

thetribunal

tribunalandandnotnotknowingly knowinglyfail fail to disclose to the the tribunal

tribunal legal authority

authori

24 in the controlling jurisdiction jurisdiction known to thethe lawyer to be directly adverse adverse to to the

the position

position ofof the client. It is insufficient the client. insufficien that the Response contain a subtle nod to to Ybanez Ybanez as as "disqualification "disqualificationwas was denied denied inin one

one matter."

matter." Response

Response at p. 6.

18 In San Agustin, Judge Tolentino voluntarily reused himself from hearing the criminal matter due to a close personal 18 25 In San Agustin, Tolentino voluntarily recused himself from hearing the matter due a close persona relationship with with both

both defendants in that

that case.

case.AsAs distinguished

distinguished fromfrom the the instant

instantmatter,

matter,thetheconflict

conflictinvolved

involved parties

partie

26 to the the criminal

criminal proceeding, not Attorney General General Moylan, Moylan, whowho isis not

notaaparty

party inin this

this case.

case. See, fn. 15,

See, fn. 15, supra. More Mor

importantly, San Agustin addressed addressedwhether

whetherJudge

JudgeTolentino,

Tolentino,whowhohadhadpreviously previouslyrecused

reused himself from from presiding over ove

27 the trial court case, was also disqualified disqualified from

fromsitting

sittingasasthe

therecusal judge in

recusaljudge in the

the same

same case. TheThe Supreme Supreme Court simply

decided, as decided, to Judge as to JudgeTolentino's

Tolentino's recusal decision, "Under recusal decision, "Under 77 GCA GCA§§6107, disqualifiedjudge 6107, aa disqualified lacks the judgelacks the power power to

to hear

hea

28 determine the and determine thematter.

matter.Once

Oncedisqualified,

disqualified, a judge

judge cancan take

takenonoaction

action-- even

even when acting in in a limited limited capacity

capacity as

as a

recusaljudge."

judge." The substantive questionof substantive question ofdisqualification disqualification involved involved facts very specific specific toto Presiding Judge Alberto C.

Judge Alberto

Lamorena III III and and Attorney

Attorney General

General Moylan

Moylanand,

and, therefore,

therefore, are

are distinguished

distinguished on on those facts from application here.

People People v. Dela Cruz,

v. Dela Cruz, Criminal

Criminal Case

Case No. CF0532-24

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of andMotion 6107 and

GCA §§ 6107

Objection 77 GCA Motion to to Disqualify

Disqualify

Page 15 of2323

1 2. The TheCourt's

Court'sDecision

Decision and Order in Ybanez applies here.

2 In In People

People v.

v. Ybanez

Ybanez et al., Superior Court of Guam Guam Criminal Case

Case No.

No. CF0447-23

CF0447-23 (Jun.

(Jun.

3 12, 12, 2024), this Court 2024), this Court rejected rejected the

the OAG's

OAG's Motion

Motion to

to Disqualify

Disqualify Judge

Judge Tolentino

Tolentino on

on identical

identical

4

19

grounds, Ending" grounds, finding:

5

6 Judge Tolentino's Judge Tolentino's spouse spouse isis not

not a party

party toto the

the proceeding,

proceeding, or or an

an officer,

director, or trustee

trustee of

of aparty.

party.She

Sheisisnot

notacting

actingas

as aa lawyer

lawyer in proceeding, in the proceeding;

7 nor known by by the the Judge

Judge to to have

have anan interest

interest that

that could

could be

besubstantially

substantially

affected affected by thethe outcome outcome of the the proceeding.

proceeding. She is not, not, to to the

the Judge's

Judge's

8 knowledge, knowledge, likely to to be be aa material

material witness

witness inin the

the proceeding.

proceeding. Therefore,

9 none none ofof these

these circumstances applies to circumstances applies to Judge Judge Tolentino

Tolentino toto invoke thethe mandatory disclosure requirements mandatory disclosure requirements of of Section Section 6106.

10

111 This Court

Court ruled

ruled fUrther that Judge

further that JudgeTolentino's Tolentino's prior

prior recusals

recusalsdue

duetoto Mr.

Mr. Moylan's

12 12 biological biological relation relation to his

his stepchildren

stepchildren did

did not

not mandate

mandate his

his disqualification

disqualification under

under the

the

13 13 circumstances, particularlywhere circumstances, particularly wherethere thereisisno

noallegation

allegation of

of a conflict

conflict other

other than the mere

than the mere fact

fact of a

14 familial relationship relationship between Mr. Moylan Moylan and

and the judge's

judge's stepchildren:

stepchildren:

15

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

consideringdisqualification disqualification under

under Section 6105(a),

6l05(a), "what

"whatmatters

matters is

16 not 'actual bias,' butbut the 'appearance of bias."'bias."'Van VanDox ,r citing Dizon Dox1132, Dizon 17 v.

v. Super

Super Cr.,

Ct., 1998

1998 Guam

Guam 33 1],r 8.8. In

In evaluating

evaluating the

the OAG's

OAG's claims,

claims, this

this Court

assumes assumes as astrue

trueall

allevidence

evidence found

found in thethe record

record and

and in

inthe

theObjection,

Objection, even

18 if if uncorroborated

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

'reasonable person' who whoknows knowsall allthe

thefacts,

facts,and

andunderstands

understands the contexts

19 of ofthe jurisdictions, parties, parties,and

andcontroversies

controversiesinvolved

involved..." Id1i,r 32, ... "Id 32, quoting

20 Ada v. v. Gutierrez, 2000 GuamGuam22 22,r,r W 12-13.

12-13.Moreover,

Moreover, "[a] court

court should

should not

hypothesize about

about what the reasonable person would the reasonable person would believe believe only upon upon the

21 moving party's party's allegations.

allegations. Instead,

Instead, itit should

should decide

decide what

what the

the reasonable

reasonable

person would

would believe about a judge's about judge's partiality given all the relevant facts given all the relevant

22 in the controversy."

controversy."Ada ,r

Ada1112.

***

23 *** 24 In In the instant case, the

instant case, thenon-disclosure non-disclosureofof the

the relationship

relationship complained

complained ofof by

the the Office ofof the

the Attorney

Attorney General

General did

did not

not fall

fall within

within the

the specific

specific

25 disqualification provisions of disqualification provisions of 77 GCA GCA §§ 6l05(b),

6105(b); therefore,

therefore, Judge Tolentino Judge Tolentino

26 was not required to disclose and and seek any

any waivers or agreements from the

27

28

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

People v. Dela Cruz,

Cruz, Criminal Case No.

No. CF0532-24

Amended Decision and Amended Decision and Order Denying the Order Denying OAG's Statement the OAG's Statement of

ofObjection GCA §§ 6107 Objection 77 GCA Motion to and Motion

6107 and to Disqualify Disqualify

Page 16 of23

1 parties under Section 6016.

6016. As such, the Court DENIES the Objection of the OAG to Judge

Judge Tolentino's

Tolentino's competency

competency on

on these

these grounds.

grounds."20

2

3 Despite filing a Response to Judge Judge Tolentino's Answer on August 14, 14, 2024, just a few weeks

4 after the Ybanez Decision, theOAG failed Decision, the,QAG failedtotoaddress addressthis

thisCou1°t's

Court's ruling

ruling therein

therein or

or otherwise

otherwise

5 . . . . 21 . .

proffer a good faith faith argument

argument to

to rule

rule differently

differentlyinin this

thls case.

case." Thus, the Court's ruling Ybanez is .6 as applicable to the instant case as applicable case despite despitethe

theOAG'

OAG's urgings to adopt Taitingfong Taitingfong and

and San Agustin.

Agustin.

7

8 3. Judge

JudgeTolentino

Tolentinoisisnot

notbiased

biased per se.

se.

9 In its Response to Judge Tolentino's Answer, Answer, the OAG

OAG argues

argues that

that Judge

Judge Tolentino is

10 10 "B~iased, PerSe."

Se."Response

Responseatat p.p. 3.3. However, However, the

the OAG

OAG provides

provides no

no sound legal authority

"Biased, Per authority in 11 1 support support of this bare bare assertion.

assertion. Indeed, the Court is Indeed, the is gravely gravely concerned

concerned that

that the

the arguments

arguments

12 12 advancing this position completely misrepresent misrepresent the

the current

current state of the law by arguing a position 13 13

14 14 that was clearly rejected by the the drafters

drafters of

of the

the statute

statute mandating

mandating disqualification.

disqualification. In the 1985 1985

15 15 Comment to Section 6105(b), the Compiler noted:

noted:

16 16 1985 COMMENT: This drafter has heard many comments from attorneys 17 who have objected objected to the procedure provided in procedure provided in the the Guam

Guam CCP.

CCP. Many

attorneys have shown a preference for the California method of determining 18 disqualifications. However, the disqualifications. However, the California California CCP,

CCP, §§ 170, is adapted 170, is adapted to to the the

multiple-court system in California. multiple-court system California. Such a system cannot cannot be

be transferred

transferred

19 without change to Guam without change Guam because because of of our

our unified,

unified, single

single court

court system.

system.

20 Therefore, Therefore, this

this Section

Section adopts

adopts those

those portions

portions ofof California

California §§ 170 which 170 which

deal with the procedure, but not substance the procedure, but not substance of of judicial disqualifications 21 and and they

they have Guam.

have been adapted to Guam.

22 Not included Not included is is an

an equivalent of California equivalent of CCP §§ 170.6 California CCP 170.6 -- relative relative to

to

23 disqualification for prejudice. Under this disqualification for prejudice. Under this law, law, an attorney could, attorney could, byby filing an affidavit

affidavit only, require

require that aa judge

judge recuse

recuse himself.

himself. After

After receiving

receiving

24 comments comments on both sides sides of of this

this question,

question, this

this drafter

drafter believes that the believes

foregoing sections provide adequate adequate relief for judicial bias, prejudice and 25 conflict conflict of

of interest.

interest. Q To add the California @ permitting automatic law permitting automatic 26

27 20 See, Ybanez at pp. 13-15. 20 .

See, Ybanez 21 21AA single single clause

clauseinin the

theResponse

Responseacknowledges

acknowledgesthethebirth

birthofof the

thebirth

birth of

of the Ybanez

28 Ybanez decision, proffers nothing decision, but proffers nothing more by way of ofdiscussion discussion or distinction. See Responseat See Response atp.p.33("("...and ... disqualification was disqualification was denied in one matter, matter,

i.e.,People i.e., v. Richard Richard K Y. Ybanez, et al Ybanez, et al.,

.• CF0447-23....").

CF0447-23 .... ").

People People v. Dela

Dela Cruz,

Cruz, Criminal Case No. CF0532-24 CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

andMotion

6107 and Disqualify Page 17 of23 1 disqualification upon upon~M affidavit

affidavit Qfprejudiee could, Qfpreiudice could, iN

in practice, result in

the Bar making go de facto facto assignments gr judges @ Q[ iudges on the Court.

Court. Tne

The

2 procedure provided here allows allows Q~ unbiased review of Q[ disqualification, 3 M but does not permit automatic disqualification without @ judge 'shaving the iudge's raving

met specific grounds Q[

gr disqualification.

4 (emphasis added).

added).

5

6 It is incontrovertible It is that Cal incontrovertible that Civ Pro Cal Civ Pro §

§ 170.1

170.1 is

is not

not identical

identical to

to Guam's

Guam's statute. The Guam

statute. The Guam

77 Legislature did not adopt the requirement that a judge judge recuse him or herself herself automatically where 8 a lawyer in the proceeding proceeding is

is the

the former spouse of the judge's spouse.

fanner spouse spouse. A plain review of of the

9 statute would

California statute would reveal this glaring difference.

10

11 §§ 170.1.

170.1. Grounds for disqualification.

Grounds for disqualification. (a)(a) AA judge judge shall

shall be

be disqualified

disqualified if if

any one oror more of the following following areare true: ** ** ** 12 12 judge, or (4) The judge, or the spouse ofofthe the judge,

judge, or

or a person within

within the third degree

of relationship to either of either of of them, oror the spouse of ofsuch such aa person

person isis aa party

party to

13 13 the proceeding oror an officer, officer, director,

director, or

or trustee of ofaa party.

party.

14 14 (5) A lawyer or a spouse of of aa lawyer lawyer in thethe proceeding proceeding is is the

the spouse,

spouse,

former child, sibling, former spouse, child, sibling, or or parent parent of the judge or or the the judge's

judge's

15 15 spouse or if such aa person person is is associated

associated in the private practice of law with a lawyer in the proceeding.

16 16 17 17 Cal. Civ. Proc.

Cal. Civ. Proc. Code§ Code § 170.1

170.1 (West)

(West) (emphasis

(emphasis added).

added).

18 In In contrast, Guam's judicial contrast, Guam's judicial disqualification disqualificationstatute

statute77GCA

GCA§§6105(b)(5)(A)

6105(b)(5)(A)and

and(B)

(B) reads

reads:

19 Where he

(5) Where she or he or she or his her spouse, his or her spouse, or

or aa person

person within

within the third

20 degree of relationship to either of them, or the spouse of of such person:

(A) is a party to

to the proceeding, or

or an officer, director, or or trustee of

of

21 a party;

party, (B) is acting as a lawyer lawyer in the proceeding;

proceeding, .....

22

23 Not included in Guam's Guam's statute

statute is

is paragraph

paragraph (5) of the California Code:

Code: "A lawyer or a

24 24 spouse of of a lawyer in the proceeding is the spouse, former former spouse, child, sibling, or or parent of the

25 judge or the the judge's

judge's spouse

spouse or if such a person is associated in the private practice of law with a 26

93

lawyer lawyer in the proceeding." To argue that this is a procedural distinction, rather than a substantive 27 28 one, is erroneous, erroneous; however, it does not change change the

the fact

fact that

that the Guam

Guam Legislature

Legislature rejected the

28

People v. Dela

Dela Cruz,

Cruz, Criminal Case

Case No. CF0532-24

CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

andMotion

6107 and Disqualify Page 18 of23

of23 ·

1 automatic automatic disqualification provisions where where aa former

former spouse the judge's ofthe

spouse of spouseappears judge'sspouse as aa appears as

2 2 in aa proceeding lawyer in it. The proceeding before it. OAGhas The OAG notprovided

hasnot anylegal providedany authority to legalauthority support aa to support

3 3 finding that finding Guam Legislature that the Guam intended to Legislature intended same provisions adopt the same to adopt despite the provisions despite clear the clear

4 omission ofthe omission of language in the language Section 6105.

in Section

5

6 6 Underan 4. Under "objectivelyreasonable an"objectively person"standard reasonableperson" andconsidering standardand the American considering the

Association's Formal Opinion Bar Association's 488, Judge Opinion 488, Tolentino was Judge Tolentino not required was not to

required to

7 7 this case.

in this

himself in

disqualify himself disqualify

8 Finally, Finally, the

the Court the "objectively addresses the

Court addresses person"standard reasonableperson"

"objectively reasonable requirement in standard requirement

9 viewing the disqualification viewing the question in disqualification question this case. The OAG in this correctlystates OAGcorrectly the legal states the standard legalstandard

10

111 applicable in in determining judge must whether a judge

determining whether be disqualified must be underthe disqualified under provisions of theprovisions of Section

12 12 6105, San Agustin: "A 6105, quoting San courtshould "Acourt nothypothesize shouldnot about what hypothesizeabout the reasonable what the person reasonable person

13 13 about a judge's believe about

would believe facts in the controversy.... Under relevant/acts

the relevant

allthe

given all

judge's partiality given

14 14 test, ... 'the court asks this objective test, whether aa person asks whether withknowledge personwith of all the facts would knowledge of

15 15 733

6 perceive aa significant perceive riskthat significantrisk the judge will that the thecase resolvethe

willresolve onaabasis caseon otherthan basisother than the merits."'

the merits.

116 17 17 San Agustin at (quoting San

Objection at p. 4 (quoting ,r 23)

at 1] detailed Judge Tolentino's detailed added). Judge

(emphasis added).

23) (emphasis

18 18 Answer provides relevant Answer provides facts establishing relevant facts that no establishing that close personal no close relationship exists personal relationship between exists between

19 19 Attorney General himself and Attorney himself Moylan, nor between General Moylan, JudgeTolentino betweenJudge 's wife Tolentino's andMr.

wife and Moylan. The

Mr.Moylan.

20 OAG's andResponse Objectionand

OAG'sObjection only declare, Response only without citing declare, without specificfacts, citing specific that aa close facts,that personal close personal

21 22 relationship exists. 22

23 In its its Formal

Formal Opinion 488 (Sept.

Opinion 488 5, 2019), (Sept. 5, the American 2019), the Bar Association, American Bar considering Association, considering

24 24 social or close have social

they have

proceedings in which they themselves in proceedings disqualify themselves to disqualify

obligation to

judges' obligation 25 . 1 . 1 .

personal relationships wlth lawyers or with the lawyers parties other orparties than a spousal, other than partner or other spousal, domestic partner 26 close family relationship, looks to relationship, looks to Rule Rule 2.11

2.11 of

of the

the Model of Judicial Model Code of Conduct ("Model Judicial Conduct ("Model 27

28 Code") Code")requiring requiring disqualification their impartiality "because their

disqualification "because might reasonably impartiality might questioned."

reasonably be questioned."

People v. Dela

Dela Cruz,

Cruz, Criminal Case

Case No. CF0532-24

CF0532-24

Amended Decision and Amended Decision OrderDenying and Order Denyingthe

theOAG's

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

6107 and Motion to

to Disqualify

Disqualify

Page 19 of23

1 ABA Formal ABA Formal Op.

Op. 488 at 11 (Sept. 5, 2019) (citing N.Y. Jud. Adv. Op. 11-125, 2011 WL 8333125 11-125, 2011

2 *4 (Oct. 27, 2011).

2011). In

In this

this regard,

regard, the

the ABA

ABA opined

opined that "Judges are ordinarily in the best position 3 whether their impartiality to assess whether impartiality might might reasonably be questioned when when lawyers

lawyers or

or parties with

4 whom they they have

have re1ationships...appear before them."

relationships ... appear befme them." Id.

Id. However,

However, the that "in the ABA notes that

5

6 smaller smaller communities communities and

and relatively

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

7 and personal personal contacts contacts with lawyers and parties that are unavoidable. In that circumstance, too 8 strict strict aa disqualyicatiorz disqualification standard would would be impractical to

to enforce potentially disrupt enforce and would potentially 9 the administration ofjustice."

justice." Formal

Formal Op.

Op. 488

488 at

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

also recognized

10

11 11 that over time relationships change "or "or may

may have

have ended

endedsufficiently

sufficientlyfar

far in

in the

the past

past that

that it is not a

12 current r ent concern concer n when viewed

viewed objectively."

objectively." Id.

Id. "Fina

"Finally, judges

judges must

must aavoid

void disqua lifying

disqualifying

13 13 themselves too themselves too quickly quickly or

or too often

often lest litigants be encouraged to use disqualification motions as 14 a means meansof ofjudge-shopping, or other judges in the same court...become overburdened."

same court overburdened." Id.

15 15 The Formal Opinion

Opinion tracks the rationale of of San Agustin, wherein

wherein the Guam Supreme Court 16

17 17 declared, "Our "Our recusal statute promotes fairness by avoiding avoiding the

the appearance

appearance of

of bias, but a party's

party's

18 one-sided one-sided perception perception of

of an

an appearance of

of bias is not grounds for disqualification." San Agustin at 19 19 *H 25.The ,i 25. TheOAG OAGadvances

advances its

its Objection

Obj sectionsolely

solelyonona a"familial

"familialrelationship"

relationship"and

and aa claim

claim by

by Chief

Chief

20 Prosecutor Rudolph that Prosecutor Rudolph that this this relationship is "significant relationship is and continuing"

"significant and continuing" without any facts facts

21 22 presented to illustrate this this condition.

condition. This

This is

is simply

simply not enough.

22

23 Adopting the recommendations recommendations of

ofthe

the ABA

ABA in

in its

its Formal

Formal Opinion

Opinion 488,

488, and, based on the

24 objective reasonable reasonable person standard standard and

and considering

considering the

the Answer filed by Judge Tolentino and 25 judicial community the judicial community and and the

the lack

lack of

of factual support provided by the OAG, as well as the the context

context

26 in which the disqualification disqualification is sought, the Court Court makes the following following findings

findings::

27

28

People People v.

v. Dela

Dela Cruz,

Cruz, Criminal

Criminal Case

Case No. CF0532-24 .

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of andMotion 6107 and

GCA §§ 6107

Objection 77 GCA Motion to to Disqualify

Disqualify

Page 20 of2323

1 11. Other mere fact Other than the mere fact of of aabiological

biologicalrelationship

relationship between

between Attorney

Attorney General

General Moylan

Moylan

2 stepchildren, there is no credible evidence of and Judge Tolentino's stepchildren, of any relationship 3 within three - within three degrees

degrees or

or otherwise - between

between Mr.

Mr. Moylan

Moylan and Judge Tolentino.

4 Thecircumstances

2. The circumstances since since October,

October, 2022

2022 under

under which

which Judge

Judge Tolentino

Tolentino disqualified

disqualified

5

6 himself voluntarily voluntarily have

have changed,

changed, and

and there

there is evidence to

is no evidence to contradict contradict Judge

Judge

7 Tolentino's description of the the meeting between Attorney General Moylan, Moylan, the

the AG's

AG's

8 staff, Judge Tolentino and court court staff

staff affirming that any conflict relating to the familial 9 association which previously existed between Judge Tolentino and Attorney General 10

111 longer existed,"

Moylan "no longer existed," therefore, therefore, Judge Tolentino Tolentino is not

not required

required to disqualify

12 12 himself under Section himself under Section6105 6105;,

13 13 Neither Judge 3. Neither Judge TTolentino nor his olentino nor his spouse

spouse (as

(as the

the former

former wife of

of Attorney

Attorney General

General

14 14 Moylan) are Moylan) are within

within the thyrd

third degree of relationship to any party to to the

the proceeding

proceeding nor

15 15 to anyone acting as a lawyer in the proceeding, as there is no legal authority cited by 16 16

17 17 the OAG which which affirms aa relationship within three degrees after the termination of of a

18 marriage, which is a relationship by affinity, affinity;

19 19 4. Attorney

AttorneyGeneral

GeneralMoylan

Moylanisisnot

notaa"party"

"party"to

to the

the proceeding,

proceeding, but

but aa representative

representative of

of

20 the People of

of Guam in matters brought in the name ?f of the People of Guam;

Guam,

21 5. Attorney General Moylan and Mrs. Tolentino's children are now grown adults living 22

23 on their their own,

own, which

whichposes

poses aasignificant

significantchange

change ininrelationships

relationships distancing

distancing Judge

Judge

24 Tolentino from Attorney General Moylan;

Moylan,

25 6. There

Thereisisno

noevidence

evidenceofofaa "close

''close personal

personal relationship"

relationship" between

between Mr.

Mr. Moylan and Judge

26 Tolentino requiring disqualification under Section 6105 or the Model Code;

Code,

27

28

. Peoplev.

v. Dela

Dela Cruz,

Cruz, Criminal Case

Case No. CF0532-24

CF0532-24

Amended Decision and Amended Decision and Order OrderDenying

Denyingthe

theOAG's

OAG's Statement

Statement of Objection 77 GCA of Objection GCA §§ 6107 andMotion 6107 and Motion to

to Disqualify

Disqualify

Page 21 of 23

1 7. InInthis thissmall

smalllegal

legalcommunity

communityininGuam

Guamand

andwith

withaatrial

trial court

court bench consisting only of 2 four (4)

(4) dedicated criminal court dockets, dockets, requiring

requiring Judge Tolentino, who is one of the 3 four (4) judges assigned

assigned to the docket, to disqualify himself the criminal docket, himself pursuant pursuant to

4 Section 6105 from all cases in which Attorney General Moylan Moylan represents the People 5

6 of Guam Guam would

would (a)

(a) be

be impractical

impractical to

to enforce,

enforce, (b)

(b) negatively

negatively impact

impact the

the efficient

efficient

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

( lead

lead to

to judge-shopping

judge-shopping and/or

and/or overburden

overburden other

other

8 22 judges in the

the same

same court.

court."

9 Having made the following findings, findings, the

the Court

Court Ends

finds that

that Judge Tolentino is not required 10 10

11 1 to disqualify himself himself under Section 6105(a)

6105(a) and

and rejects

rejects the

the OAG's

OAG's Objection.

12 12 CONCLUSION 13 13 Although this Court finds that the OAG has failed to raise the issue of Judge Judge Tolentino's

Tolentino's

14 14 disqualification disqualification timely timelyand

and therefore

therefore has

has waived

waived any

any right

right to

to advance

advance itit now, even ifif it were raised 15 15 at the the earliest earliest practicable

practicable time,

time, no disqualifying

disqualifying facts

facts exist

exist to

to support

support Judge

Judge Tolentino's

Tolentino's

16

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

18

19 22 22 Indeed, the filing by the OAG of over fifty (50) identical Objections to Judge Tolentino's assignment in criminal Indeed, the filing by the OAG of over fifty (50) identical Objections to Judge Tolentino's assignment in crimina 20 20 cases has had aa significant significant negative impact on on the the caseload

caseload of ofthe

the three

three remaining

remaining dedicated

dedicated criminal

criminal courts.

courts. For

Fo

example, asserted speedy trial cases in in which which Judge Tolentino was assigned pursuant to the Administrative Rule were 21 21 reassigned reassigned to to other criminal criminal judges

judges due

due to

to the running

running of the speedy trial clock. In CF270-24, CF270-24, People v. v. Michael Michae

Gregory Rosal, Rosal, this Court was assigned to take the matter to to trial trial with

with only

onlyfour

four days remaining on on his his speedy trial

tria

22 clock. See. Min. of Aug. 2, 2024 Hrg. at 9:22:26 AM. AM. On On August August 2,2, 2024,

2024, despite

despite that

that the

the matter had been pending before Judge Tolentino since May 24, 24, 2024, and and the

the Defendant

Defendant having

having asserted

asserted hishis right to speedy trial trial on June 21,

23 2024, the People were unprepared for trial and failed to file any witness lists lists by by the Pre-trial

Pre-trial Conference.

Conference. On August

2, 2024, the the People

People filed

filed aa Memorandum

Memorandum Supporting People's People's Motion

Motion to to Dismiss

Dismiss Without

Without Prejudice

Prejudice inin the Interest of 24 Justice and the Court granted granted the dismissal but has reserved on on the issue of of whether whether it will be dismissed with or without prejudice. Id The The Court

Court expresses

expresses grave concern

concern about

about whether

whether these

these Objections have been filed by the the OAG OAG in good

25 faith. In at least one case assigned to this Court, People of ofGuam v. PrimaPrima Sebastian, Sebastian, Criminal Case No. CF0506-24, the Objection, filed on July 29, 2024, 2024, was

was pending

pending this

this Court's

Court's determination

determination as as recusal judge (see Ntc.

recusaljudge Ntc. of Assignment 26 of of Recusal Judge (Jul. 31, 2024)

(Jul. 31, 2024) and

and CRl.1

CR1.1 Form

Form 3 (Aug. l, 1, 2024))

2024)) when

when thethe People

People filed

filed a Motion to Dismiss on August 12, 12, 2024. Despite the August 12, 2024 Motion to Dismiss, on August August 13,13, 2024, the People tiledfiled a Response 27 Tolentino's Answer.

to Judge Tolentino's Answer. One One might

might contemplate

contemplatethat that perhaps perhaps thethe assigned

assigned prosecutor

prosecutor filed

filed the Motion to Dismiss without without Chief Chief Proseeutor

Prosecutor Rudolph

Rudolph being

being aware

aware ofofthe Motion

Motion when

when she filed the Response.

Response. However,

However, Chief

Chief Prosecuto1

28 Rudolph filed both the Motion to Dismiss on August August 12, 12, 2024, 2024, andand the

the Response

Response on on August

August 13,13, 2024.

2024. Magistrate

Magistrat

Judge Jonathan Quan granted granted the Motion to Dismiss on on August August 13, 13, 2024.

2024. Order

Order (Re:

(Re: Dismissal

Dismissal Without

Without Prejudice)

(Aug. 13, 13, 2024).

People v.

v. Dela

Dela Cruz,

Cruz, Criminal

Criminal Case No. CF0532-24 Case No.

Amended Decision and Amended Decision Order Denying and Order Denying the

the OAG's

OAG's Statement of Objection Statement of andMotion 6107 and

GCA §§ 6107

Objection 77 GCA Motion to to Disqualify

Disqualify

Page Page 22 of 23

General. This Court finds that Judge Tolentino is not disqualified under 7 GCA § 6105(b)(5)(A)

2 or (B) or Canon 3 of the Model Code from presiding over this case on the grounds that he has any 3 . familial association with Attorney General Moylan. Notwithstanding Attorney General Moylan's 4 biological relationship to Judge Tolentino's stepchildren and former marriage to Mrs. Tolentino, 5

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

7 either by affinity or consanguinity, regardless of whether Mr. Moylan is a party to the litigation 8 (which he is not) or appearing as a lawyer for a party.

9 For the reasons stated herein, the OAG's Statement of Objection and Motion to Disqualify

11 is REJECTED and the Motion is DENIED. This case shall be returned to Judge Tolentino for

12 further disposition.

13 SO ORDERED this 30th day of August, 2024. 14

15

16 HONORABLE MARIA T. CENZON 17 Judge, Superior Court of Guam 18

19

20

21

22

23 SERVICE VIA'E-MAIL

24

25

26

27

28

People v. Dela Cruz, Criminal Case No. CF0532-24 Amended Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 23 of23