People v. Dela Cruz

• Court: Superior Court of Guam
• Decided: August 30, 2024
• Docket: CF0532-24
• Status: Unknown

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

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 of23 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

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 of23 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

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 23 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 of23 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 of23 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

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

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 of23 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 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

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 of23 1 Win, barred from Wia, the OAG is barred from complaining- complaining - 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

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 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 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

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 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

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

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 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 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 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

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

. 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 of23 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

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

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

23 SERVICE VIA'E-MAIL

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