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3 QF GUMA
IN THE
THE SUPERIOR
SUPERIOR COURT
COURT OF
OF GUAM
GUAM
4
5 THE PEOPLE OF THE PEOPLE OFGUAM, GUAM,
6 Case No.
No. CM0322-22
CM0322-22
7 vs.
8 KEVEN CARTER CARTER ENLET DECISION ECISION AND ORDER (Answer to OAG's
OAG's Statement
Statement of
of Objection)
DOB; 05/07/2002 DOR 05/07/2002 9
10 Defendant.
11
12
13 INTRODUCTION INTRODUCTION
14 14 This matter came before before the
the Honorable
Honorable John C.
C. Terlaje
Terlaje on
on August
August 15'*', 2024, for a 15th, 2024,
15 Motion Heari ng regarding Hearing ardi ng the
the Offi ce of the Attorney Office Attorney General General's ("OAG's")
("OAG's") Statement
Statement of
of
16 Objection ("Objection"), in Objection ("Objection"), in which the OAG OAG objects
objects to
to the
the Honorable
Honorable Alberto
Alberto E.
E. Tolentino
Tolentino
17 ("Judge Tolentino")
Tolentino") presiding over the the above-captioned
above-captioned matter due to his his relationship
relationship with
18 o r n e y General Attorney e n e r a l Douglas o u g l a s Moylan
M y l a n ("AG M o y l a n oor Moylan" r " t"then-Attorney hen-Att ey M oyl
Moylan").. UUpon
po
19 19 consideration of the consideration of the arguments arguments and
and applicable
applicable Guam
Guam law,
law, the
the Court
Court hereby
hereby DENIES
DENIES OAG's
20 Objection. As such, Judge Judge Tolentino
Tolentino may
may continue
continue to
to preside over
over this matter.
21
22 BACKGROUND
23 This case began began on September
September 14,
14, 2022, when
when the
the Attorney General
General of
of Guam accused
24 Keven Carter Carter Enlet
Enlet ("Defendant")
("Defendant") with the
the offenses (1) Driving offenses of (1) Driving While Impaired Impaired (As a
25 Misdemeanor), Misdemeanor), (2)
(2) Underage
Underage Consumption
Consumption of
of Alcohol (As a Petty Misdemeanor), Misdemeanor), (3) Operating Operating
r 26
27 Decision Decision and
and Order
Case Case No. CM0322-22, People Peoplev.v. Keven
Keven Carter
Carter Enlet
Enlet
Page 1 of
of 14
r
,J
11 a Vehicle Without Without a Valid
Valid License
License (As
(AsaaViolation).
Violation).Con pl. (Sept.
Compl. (Sept.14,
14,2022).
2022). The
The matter
matter was
was
2 assigned to Judge Tolentino on Judge Tolentino on July 10th , 2024.
July 10th, 2024.Notice of J.
Notice of J. Assignment
Assignment (Jul.
(Jul. 10, 2024). Then,
10, 2024).
3 th
4 on July July 19th, 2024,the , 2024, theOAG
OAG filed
filed a Statement of Objection and Statement of Motion to Disqualify and Motion Disqualify Judge Judge
4 5 Tolentino based Tolentino on his based on his alleged
alleged relationship
relationshipwith
withAG
AG Moylan.
Moylan. Statement
Statementof
of Obj.
Obj. 77 GCA
GCA §§ 6107
6107
5 .6 6 & Mot.
Mot. to toDisqualify.
Disqualify.(Jul.
(Jul.19,
19,2024).
2024). Judge
Judge Tolentino
Tolentino answered
answered the Statement of Objection Statement of Objection on
7 7 July 29, 2024.
July 29, 2024.Answer Answer to Statement
Statemen~ of Obj. (Jul.
(Jul. 29,
29, 2024). The
The matter
matter was
was then
then assigned to this
8 Court in the the limited
limited capacity ofRecusal Recusal Judge
Judgeon
onJuly
July30,
30,2024.
2024. NoticeofofAssignment Notice 0fRecusal Assignment ofR.ecusal
9 J. (Jul. 30, J. (Jul. 30,2024).
2024).The
The OAG
OAG responded to Judge
JudgeTolentino's
Tolentino's answer
answer on
on August
August 8, 2024. People's
2024. People's
10 10 Resp. to J.
Resp. to Answer to Tolentino's Answer J. Tolentino's to Statement Statementof
ofObj.
Obj.77GCA
GCA §§ 6107
6107&&Mot.
Mot. to
to Disqualify
Disqualify (Aug.
(Aug.
11 11 8, 2024).
2024). Defendant Defendant gave their answer as well on answer as on August 9th , 2024.
August 9th, 2024. Def.'s Def.'s Resp.
Resp. to
to Gov't's
12 12 Statement of Statement of Obj. 9, 2024).
Obj. (Aug. 9, 2024). The The Court
Court then
then took
took the
the matter
matter of
ofJudge
Judge Tolentino's
Tolentino's
13 13 disqualification disqualification under under advisement.
14 14 A. Attorney AttorneyGeneral
GeneralMoylan's
Moylan'sRelationship
Relationshipwith
with Judge
Judge Tolentino
Tolentino
15 15 It It is
is undisputed thatJudge
undisputed that JudgeTolentino Tolentinoisismarried
marriedtotoAG
AGMoylan's
Moylan's ex-wife,
ex-wife, Doris L.G.
16 16
17 17 Tolentino ("Doris"), ("Doris"),and
andthat
that Judge
Judge Tolentino is the stepfather stepfatherto
toAG
AG Moylan's
Moylan's two
two children,
children,
18 18 Brandon (born 1990) and Angela 1990) and Angela (born
(born 1992). Answer to
1992). Answer to Statement Statement of
ofObj.
Obj. at
at 33 (Jul.
(Jul. 29, 2024).
19 19 AG AG Moylan Moylanand andDoris
Dorisdivorced
divorcedinin1997,
1997,and
and then,
then, in
in 2005, Doris remarried to to Judge
JudgeTolentino,
Tolentino,
20 who remains her husband remains her husbandtotothis thisday.
day.IdIdAs
As recently
recently as
as October
October2022,
2022,prior
priortotoAG
AG Moylan's
Moylan's
21 election, Judge Tolentino disqualified Judge Tolentino disqualified himself himself from
from cases
casesinvolving
involving then-Attorney
then-Attomey Moylan in
22 private practice, because because "Douglas
"Douglas Moylan, Esq., is the the father
fatherof
of my
my step-children."
step-children." Id.
Id at
at 24-26,
23 Exs. A-C.
24 A month
month later,
later, on
on November
November 8,
8, 2022,
2022, then-Attorney
then-Attorney Moylan was
was elected
elected Attorney
Attorney
25 26 General of ofGuam
Guam and became
becameAG
AG Moylan, taking office
office in
inJanuary 2023.Id
January 2023. Id at 2. Before Before being
26
27 Decision Decision and
and Order People v.
Case No. CM0322-22, People v. Keven Carter Enlet Page 2 of14
L
1 sworn in as Attorney General, however, then-Attorney Moylan requested a meeting with Judge 2 Tolentino in December 2022.
2022. Id.
Id The
The meeting
meeting took
took place in Judge
Judge Tolentin0's
Tolentino's chambers
chambers with
3 4 the Administrator Administrator of Courts, Judge Tolentino's Courts, Judge Tolentino's chamber staff, and then-Attomey chamber staff, then-Attorney Moylan's 4 transition chairperson, Mr. Wilfred Aflague. Id. According to to Judge
Judge Tolentino, and undisputed 5
6 by the OAG, then-Attorney by "assured [Judge then-Attomey Moylan "assured [Judge Tolentino]
Tolentino] and the other
other members
members in
7 attendance that attendance thathe heperceived
perceived no
no conflict
conflict in his election as Attorney General General and
and the
the prosecution
8 cases before of criminal cases before [Judge [Judge Tolentino's
Tolentino's Court]."
Court]." Id.
Id Accordingly, since AG Moylan took
99 office in January 2023, Judge Tolentino has presided over a myriad myriad of criminal cases all without 10 1 until now. Only recently has the statements of objection statements objection from from the
the OAG1,
, until now. Only recently has the OAG begun to tile file
11 2 of obi
statements of objection ection2 andonly
and onlyrecently
recentlyhas
has Judge
Judge Tolentino
Tolentino been
been disqualified because of his 12 12 relationship with AG Moylan.
13 13 RecentDecisions
B. Recent Decisions Regarding Regarding Judge
Judge Tolentin0's
Tolentino's Disqualification 14 14 The first ever disqualification of of Judge Tolentino (based on his relationship with 15 15 AG Moylan) did did not
not arise
arise out
out of
of an
an objection
objection from the OAG, but out out of
of an
an objection
objection
16 17 "from ·from aa Defendant.
Defendant. On April 5, 2024, for the first time, a court found that "a reasonable J
17 18 18 person person could could question
question whether
whether Judge
Judge Tolentino
Tolentino could
could be impartial in
in aa case proceeding
19 19 at the direction of [AG] Moylan"
Moylan" due
due to
to the fact that Judge Tolentino is stepfather stepfather to AG
20 20 Moylan's children. People of children. People of Guam
Guam v.v. Nakita
Nikita TT Aguon, CM0145-21 CM0145-21 at 8 (Super.
(Super. Ct.
21 21 Guam.
Guam. April April 5, 5, 2024).
2024). The
The Honorable
Honorable Joseph
Joseph N. Camacho,
Camacho, serving
serving as Judge
Judge Pro
Pro
22 Tempore, issued the Tempore, issued the Decision Decision and
and Order
Order after
after Nakita
Nikita T. Aguon, the Defendant in the 23
24 11 See SeeAnswer Answer to to Statement
Statement ofof Obj. at 6 (Jul. 19, 2024} {Jul. 19, citing People 2024) citing People v.v.Balatico, ·Balatico, Crim.
Crim. Case No. CM0188-24;
Case No. CM0188-24, People People
25 Rosal, Crim. Case No.
v. Rosal, No. CF0270-24, CF0270-24, and
and People
People v. Rikot, Crim.
v. Rikat, Crim. Case No. CF0423-24 Case No. CF0423-24 and
and Shane
Shane Tenorio
Tenorio Healy,
Healy,
"Akoma "Akoma trial:
trial: Judge
Judge denies admission of of AG AG evidence",
evidence", Moriqnas
Marianas Variety, November 23, Variety, November 23, 2023, 2023, Akoma
Akoma trial:
trial: Judge
Judge
denies admission admission of of AG evidence II News AG evidence News Il Marianas Marianas Variety
Varietv News
News & & Views
Views (mvariety.com).
(mvarietv.com).
26 SeePeople 22 See Peopleof of Guam Guam v.v. Richard
Richard y.
Y. Yabnez, Er. al,
Yabnez, et. CF0447-23 at al, CF0447-23 at 5-6
5-6 (Super. ct. Guam.
{Super. Ct. Guam. June 12, 2024).
June 12, 2024).
27 Decision Decision and Order
Case No.
No. CM0322-22,
CM People
People v. Keven
Keven Carter
Carter Enlet
Page Page 3 of of 14
I
1 case, argued during during a hearing
hearing on March
March 1,
1, 2024,
2024, that
that "there
"there had
had been
been an
an undisclosed
undisclosed
.2 familial familial relationship relationship between Judge JudgeTolentino
Tolentino and
andDouglas
DouglasMoylan
Moylan... as
Id at
... " Id at 4-5.
4-5.
3 Then, on May 1, 2024, for for the first time during during AG
AG Moylan's
Moylan'stenure
tenure as Attorney
4 General, the the OAG
OAG filed
filed a aStatement
Statement of
ofObjection
Objection against
against Judge
Judge Tolentino
Tolentino in
in a
5 government corruption case, case,based
basedon
onJudge
JudgeTolentino's
Tolentino'srelationship
relationshipwith
withAG
AGMoylan's
Moylan's
6 7 children. See People of See People of Guam
Guam v.v. Richard
Richard Y Ybanez,
Ybanez, et. al, CF0447-23 CF0447-23 at
at 5-6 (Super.
(Super. Ct.
7 Guam. Guam. June 12, 2024).
June 12, 2024). The objection objection took
took place
place -several
-several days after
after Judge
Judge Tolentino
8
9 9 disqualified the OAG disqualified the OAG itself over over aa conflict
conflict of
ofinterest
interest in
in the
the same case.Id
same case. Id at
at 5. The
10 10 Statement of Objection Statement of Objection cited cited the
the precedent
precedent set by
by Aguon aa few weeks
weeks earlier. Id at
earlier. Id at 6.
11 11 Ultimately, Ultimately, the the Honorable
Honorable Maria
Maria T.
T.Cenzon
Cenzondenied
deniedthe
the Statement
Statement of
ofObjection
Objectionon
onJune
June
12 12 12, 12, 2024, holding that 2024, holding that Judge JudgeTolentino
Tolentinowas
wasnot
notdisqualified
disqualifiedunder
under77GCA
GCA §§ 6105(a)
6105(a) or
or
13 13 (b), (b), and and that even if
that even if he
he was, the OAG's
was, the OAG's Objection
Objection was
was untimely
untimely under
under 77 GCA
GCA §§ 6107
6107
14 14 and constituted constituted aawaiver.
waiver. Id
Id at
at23
23.
15 15 Concunently, Concurrently, on May 21,
21, 2024,
2024, aa Defendant
Defendant in
in another
another case,
case, similar to the
the
16 16
17 Defendant Defendant in Aguon, filed an an Amended
Amended Objection
Objection on
on Judge Tolentino as
Judge Tolentino as well. See See
17 18 18 People of Guam People of Guam v.v. Corina Carina Jamel
JamelTaitingfong,
Taitingfong et
etal.
al. {"Taitingfong'),
("Taitingfong"), CF0024-24 at 4
19 19 (Super.
(Super. Ct. Guam.
Guam. June 4, 2024).
June 4, 2024). The
The Honorable
Honorable Elyze
Elyse M.
M. Iriarte,
Iriarte, sitting
sitting as
as aa recusal
recusal
20 20 Judge, issued aa Decision Judge, issued Decision and and Order
Order finding
finding for the Defendant that "[b Defendant that "[b]ecause ]ecause of aa
21 reasonable perception that reasonable perception that Judge Judge Tolentino
Tolentino continues
continues a co-parental
co-parental connection with 22 Attorney Attorney General General Moylan despite
despite the
the maturation
maturation of their
their mutual
mutual children, he is
children, he is
23 disqualified, and such disqualified, and such disqualification disqualificationhas
hasnot
notbeen
beenwaived
waived nor
nor can
can it be
be cured
cured
24 25 retroactively through anethical through an ethicalwall."
wall." Id
Id at
at 8.
25
26
27 Decision Decision and
and Order People v.
Case No. CM0322-22, People v. Keven Carter Enlet Page 14 Page 4 of 14 1 Finally, Finally, on July
July 18, 2024, (a
18, 2024, (a day
day before
before the
the OAG
OAG filed
filed their
their Statement
Statement of
2 2 Objection Objection in in this case 3 the
this cases) the Guam
Guam Supreme
Supreme Court issued an Opinion inSan San Agustin v.
3 Superior Superior Court, finding that that since Judge
Judge Tolentino
Tolentino had
had previously
previously disqualified himself 4 from the case, based on from onhis hisclose
close relationship
relationship with the Defendants, that thatthe
theCourt
Court"lacked
"lacked
5 jurisdiction to jurisdiction to act act while
while the
the judge
judge is
is disqualified." San Augustin, 2024 Guam 2 at ,rii 19.
disqualified."San
6 7 The Guam Supreme Supreme Court
Court explained
explained that
thatthey
theywere
wereusing
usingtheir
theirsupervisory
supervisory authority
authority"to
"to
7 8 8 clarify clarify that that aa disqualified
disqualified judge
judge should
should not be appointed as as aarecusal
recusaljudge."
judge." Id.
Id at ,r
at 1]36.
9 9 In In the wake of ofthese
these recent
recent decisions,
decisions, this
this Court
Court now
nowtakes
takes up
up the same issue
issue of
of whether
10 Judge Tolentino should be Judge Tolentino be disqualified disqualified based
basedhis
hisrelationship
relationshipwith
withAG
AG Moylan.
Moylan.
11 11 DISCUSSION
12 7 GCA §§6105 7 GCA 6105 provides
provides the
the substantive
substantive grounds for disqualification grounds for disqualification of ofaa Judge
Judge in
in Guam.
Guam.
13 13
,14 7 GCA GCA§§6105(a)
6105(a)states
states in full:
full:
14
15 15 Any Judge Any shall disqualify Judge shall disqualify himself or or herself
herself in
in any
any proceeding inin which which his or
her impartiality reasonablybe impartiality might reasonably be questioned, questioned,butbutif,
if, following
following complete
complete
16 16 disclosure to to all parties in
in the
theproceeding
proceeding of
of the
the reasons
reasonsfor
for disqualification,
disqualification, all
parties agree to having the Judge continue to Judge continue to sit in the proceedings, he or she 17 not disqualify
need not disqualify himself or herself.
herself.
18 18 See See 77 GCA
GCA §§ 6105(a).
6105(a).
19 19 The Supreme of Guam, Supreme Court of Guam, in in interpreting this section, section, explained that
that "what
"what matters
matters isis 'the
20 appearance of of bias,"
bias,' not 'actual bias."'
bias."' Dizorz
Dizon v. Superior
Superior Court, 1998
1998 Guam ,r 10 (emphasis Guam 3 1]
21 added). "[N]o "[N]o actual
actualshowing
showingofofbias
biasisisnecessary
necessary for
forrecusal
recusal to
to lie." Id.1],r10.
lie."Id 10. Instead, Instead, the Court
22 must focus on "whether "whether aa reasonable
reasonable person would have a reasonable basis basis for questioning the 23
24 the Judge Judge's impartiality, not whether the Judgeisisimpartial."
impartial." People
People v.
v. Tennessean,
Tennessean, 2010 Guam 12
24 25 25 ,r 33 'll 33 citing citing United
United States v.v. Cherry, th Cir.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003).
26 3 Statement 3 Statement of of Obj.
Obj. 77 GCA
GCA§§6107
6107&& Mot.
Mot. to
to Disqualify. (Jul. 19,
Disqualify. (Jul. 19, 2024).
2024).
27 Decision Decision and Order
Case No.
No. CM0322-22,
CM0322-22, People
People v. Keven Carter Enlet v. Keven
Page Page 55 of of14
11
In Guam, a Judge is mandated mandated to disclose any facts facts which
which disqualify them
them under Section
2 6105, if 6105, such grounds if such grounds exist.
exist. 77 GCA
GCA §§ 6106.
6106. When
When such grounds exist
such grounds and aa Judge exist and Judge fails
fails to
to declare
declare
3 them as required, any any party
party may-file
may-file aa statement
statement of
of obi action under
objection under 77 GCA
GCA §§ 6107.
6107. The
The Supreme
Supreme
4
Court Court of of Guam
Guam has
has described
described the
the procedure
procedureprescribed
prescribedby
by77GCA
GCA§§6107
6107asasfollows
follows:1
5
6 Pursuant to 7 GCA 6107, if a judge judge does not recuse himself, then a party may, 'at the earliest practicable practicable opportunity,'
opportunity] 'file ... a written statement objecting to 7 the ... Judge.'
udge' TThe
he wr it t
written sstatement
t a ement must 's 'set[[ ] for forth tthe fafact oror fa ct facts
constituting the ground of of the disqualification of such ... Judge,' and must be 8 sewed servedononthe
the Judge.
Judge. Within
Within'ten'ten(1 (1 0)
0) days
days after the service ... or ... filing of of any
9 statement, whichever
whichever isis later
later in time,' a Judge may file a 'written answer,' which which must be 'verified in the manner prescribed manner prescribed for for the verification of of pleadings.' If
10 the Judge opposes hishis own own disqualification,
disqualification, then
then 'the
'the question
question of
of the
the... Judge's
... Judge's
disqualification shall be be heard
heard and and determined
determined byby some other Judge.'
11 11 See Van Dox See Van Dex v.
v. Superior Cr.,
Ct., 2008 Guam 7,r
71117 (internal citations 17 (internal citations omitted).
omitted).
12 12.
In In the the same case,the
same case, theGuam
GuamSupreme
SupremeCourt
Courtmade
madeclear
clearthat
that"with
"with respect to the statutory respect to statutory
13 13
14 14 provision ovis ion requiring equ ir ing that
ha t dis qu a lif ic a t ionbe disqualification b e urged r ged aat t he
the ' ea'earliest
r lies t p rpracticable
a c t ic a b le
15 15 opportunity,'the theintention
intention'is'isclear
clearthat
thatfailure
failure to
to comply
comply with
with the
the provision
provision constitutes
constitutes
16 16 a waiver."' Id. 1]
,r 40 citing Caminetri
Caminetti v. Pac. Mut.
v. Pac. Mat. Ins.
Ins. CO.
CO. of Cal., 139 P.2d 930, 933
17 17 (Cal. 1943). Therefore, the 1943). Therefore, the Court Court must
must first
first determine
determine whether
whether the
the OAG waived their
18 18 objection under 77 GCA objection under GCA §§ 6107, 6107, and
and then
then determine
determine whether
whether there
there is
is an
an appearance
appearance of
of
19 19 bias under under 77 GCA
GCA § 6105.
6105.
20 A. Did
Did the
the OAG
OAG Fail
Fail toto File
File atatthe
the'Earliest
'Earliest Practicable
Practicable Opportunity,'
Opportunity,' and
21 Therefore Waive Their Statement Statement of of Objection Under Under 7 GCA 6107?
22 The Court answers this question in the affirmative. In Guam, in order to to comply
23 with 7 GCA § § 6107, the "earliest practicable 6107, disqualification must be urged at the 24 opportunity." See Van Dox v. Superior Superior Cr.,
Ct., 2008 Guam ,r 17 (emphasis added).
Guam 77 1] added). The 25 Guam Supreme Court takes Supreme Court takes this language from a California language from California case case and
and notes
notes that an
26
2'7 27 Decision and Decision and Order
Case No. CM0322-22, People v. Keven Carter Enlet Page 6 of14 Page 1 "objection "objection was was waived
waivedwhere
where party
party failed
failed to
to request
request disqualification
disqualification until
until three months
months
2 2 after after the party party was
was aware
awareof
ofthe
thedisqualifying
disqual /ingfacts..." Idatat1],r 45 ... " Id 45 citing citing Caminetti
Caminetti v.
v.
3 Pac. Mut.
Mai. Ins.
Ins. Co.
Co.of Cal., 139
offal., 139 P.2d
P.2d 930, 933 (CaL1943)
(Cal.1943) (emphasis
(emphasis added).
added). The
The Guam
4 Supreme Court also Supreme Court also notes notes that
that aa "statement
"statementmay
maybe
be untimely
untimely if
if a party waits until the the
5 eve of trial trial totorequest
request disqualification
disqualification based
based on information
information made
made known
known months
months
6 earlier." ,r 46 citing People v.v. Pariah, earlier." Id at 1146 Panah, 107 790, 824 (Ca1.2005)
107 P.3d 790, (Cal.2005) (emphasis 7
added). the case added). In the case before before us,
us,AG
AG Moylan
Moylan knew about the
the allegedly
allegedly disqualifying facts facts
8
9 almost two decades decades in advance,
advance, because
becauseAG
AG Moylan's
Moylan's ex-wife
ex-wifeDon'is
Dorrisremarried
remarried Judge
Judge
10 Tolentino in in 2005.
2005. Answer
Answer to
to Statement of Obj. at
Statement of at 3 (Jul. 29, 2024).
11 11 Further, AG Moylan Further, AG Moylan himself himselfrecognized
recognized that
that the "earliest possible opportunity"
opportunity"
122 . . . . l to address theallegedly address the allegedly disqualifying disqualifying facts
facts was
was almost
almost two
two years
years ago, in
in December
December 2022,
13 before taking taking office,
office, because
because that's
that's when
when then-Attorney Moylan chose then-Attorney Moylan to meet with chose to
14 14 Judge Judge Tolentino Tolentino and
and waive
waive the conflict. Id
the conflict. Id at 2.
2. AG Moylandoes
AG Moylan does not
not dispute
dispute this4, and
this, and
15 15 16 the meeting meeting took place in front of witnesses, witnesses, including the
the Administrator
Administrator of
of Courts.
Courts. Id
Id
16 17 It is is correct correct that the
the newly elected Attorney General General sought to resolve sought to resolve the
the conflict in
17
18 18 December December 2022 before taking office, office,because
becausethere
there are
are massive
massive administrative
administrative concerns
concerns
19 19 with with disqualifying disqualifyingone
one of
ofthe
the Guam
Guam Superior Court's limited limited Judges from every criminal Judges from
20 20 case on the theisland,
island,and
andany
anycivil
civil case chargedby
case charged bythe
theOAG
OAG as
as well.
well. This
This is
is why
why the
the Guam
21 Supreme has cautioned Supreme Court has cautioned that thataaJudge
Judgeshould
shouldnot
not"distance
"distance themselves
themselves from cases
cases
22 at the the slightest slightest suggestion" because because "[a]
"[a]Judge's
Judge'sduty
dutytotohear
hearaacase
case and
and keep the wheels
23 of ofjustice justice rotating rotating is
is just as strong as his
strong as his or
or her
her duty
dutyto
to remove
remove himself
himself or
or herself
herself if aa
24 25 reasonable personwould reasonable person wouldnot notbelieve
believe in his
his or
or her
her impartiality."
impartiality." Ada v.
v. Guitierrez, 2000
25
26 44 Min.
Min. Entry at 9:48:01 9:48:01 AM
AM {Mot.
(Mot. Hearing,
Hearing, Aug. 15, 2024).
27 Decision Decision and Order
Case No.
No. CM0322-22,
CM People
People v. Keven Carter Enlet En/et
Page Page 7 of 14 1 Guam 22 22 at 111]12-13.
at~~ 12-13.With
Withallallofofthis
thisininmind, nevertheless address the will nevertheless
Courtwill theCourt
mind,the
22 timeliness arguments.
OAG's timeliness OAG's 3 a. AG Moylan's Waiver Still Applies, Even Though the Case Was Only Moylan's Waiver
4 Assigned to Judge Tolentino in 2024 The OAG
OAG maintains
maintains that even
even though
though they their Complaint filed their
they tiled for this case in Complaint for
5
6 September September 2022, the Objection Tolentino until July 2024, so the 2022, itit was not assigned to Judge Tolentino Objection 6
77 is is still timely. People's still timely. People's Resp.
Resp. to
to J.
J. Tolentino's
Tolentino's Answer
Answer to
to Statement
Statement of
of Obj.
Obj. 77 GCA
GCA §§
8 6107 & Mot. to Disqualify at 3, (Aug. 8, 2024). In a more typical situation, the Guam
99 Supreme Supreme Court has held that "a Court has "a statement statement of objection is normally timely of objection is timely if it is
10 submitted prior to any hearing to any before the challenged judge in the matter."
hearing before Van Dox See Van
matter." See Dox
11 11 v. Superior 2008 Guam 77 1]~ 46 citing Superior Ct., 2008 citing Hollingsworth, Hollingsworth, 236 Cal.Rptr.
Cal.Rptr. at
at 195-96
195-96
12 12 (emphasis added). However, (emphasis is not a "normal"
this is
However, this This is the situation. This
"normal" situation. Attorney General the Attorney
13 13 14 of Guam. If we disqualify Judge Tolentino from hearing cases related to AG Moylan, of 14 15 we will disqualify disqualify Judge
Judge Tolentino
Tolentinofrom
firm Guam's
Guam's entire prosecution mechanism.
15
16 16 When the Guam Supreme Supreme Court
Court laid
laid out the normal
out the timeliness standard, normal timeliness stated standard, stated
17 17 above, the Court cited Hollingsworth, llingsworth, but that California case involves involves a situation where
18 18 a Defendant could not not possibly predict that the Judge in question would hear the case 19 19 See Ho ahead of time. See ahead llingsworth, 236 Cal.Rptr. at 197 ("We Hollingsworth, findititunreasonable, ("We find as unreasonable, as
20 well as impracticable, well as require presentation of impracticable, to require of disqualification of a statement of it is until it
disqualification until
21 known known which which judge
judge will
will hear
hear the case."). Unlike the Defendant in Hollingsworth, the case."). Hollingsworth, AG 22 23 Moylan knew that that Judge Tolentino would hear AG AG Moylan's
Moylan's cases,
cases, because Judge
because Judge
23 24 Tolentino is a Guam Superior Court Judge of Judge and AG Moylan is the Attorney General of 24 25 25 Guam.
26
27 Decision Decision and
and Order
No. CM0322-22, People
Case No. v. Keven Carter Enlet People v.
Page 14 Page 8 of 14 1 AG Moylan knew knew well
well ahead
ahead of
of time that Judge Tolentino would be hearing AG
22 Moylan's cases, Moylan's cases, Which which is why
why AG Moylan himself
himself asked Judge Tolentino for a meeting meeting
3 to address the countless, potential conflicts. Answer to Statement of Obj.
Statement of Obj. at
at 2 (Jul.
(Jul. 29,
4 2024). Typically, Typically, the
the timeliness
timeliness requirement
requirement should be "liberally construed" to promote 5 justice. See See Van Dox 2008 Guam Ct., 2008
Dox v. Superior Ct., i! 45 Guam 77 1] 45 citing Eagle Mains.
citing Eagle Maint. & Supple Supple
6 Co. Super. Ct., 16 Cal.Rptr. Co. v. Super. Ca1.Rptr. 745, 745,747
747 (Dist.Ct.App.1961).
(Dist.Ct.App.1961).However, However, again,
again, when
when the
7
8 Court emphasizes
Guam Supreme Court emphasizes this this liberal
liberal construction,
construction, they cite a California California case
99 where, "it would place an undue hardship upon a litigant or his counsel to compel him
10 to know before the first first scheduled trial setting, what what judge would
would be assigned
assigned to try his
11 department of particular department
case in a particular of the the court
court where
where the
the trial
trial date
date has
has been
been set
set over."
over." Id.
Id
12 12 (emphasis added).
13 13 The Guam
Guam Supreme
Supreme Cou1"c's
Court's normal
normal standard
standard clearly
clearly applies
applies in
in aa typical
typical
14 14 situation, but situation, but the the case
case before
before us
us is
is not typical:
typical: it involves the Attorney General.
General. AG
15 15 clearly knew "what judge would Moylan clearly would be be assigned
assigned to
to try
try his
his cases,"
cases," because
because the
16 16
17 17 Attorney General General represents
represents the
the People,
People, and
and the
the People
People inevitably
inevitably try
try cases
cases in
in front
front of
18 18 every Superior Court Court Judge,
Judge, including
including Judge
Judge Tolentino.
Tolentino. This
This isis why
why AG Moylan met
19 19 December 2022 to specifically address with Judge Tolentino back in December address Judge Judge Tolentino's
Tolentino's
20 criminal docket, before taking office. Further, Further, AG Moylan, does not dispute that he
I
21 waived any
purposely waived any potential potential conflicts
conflictsduring.
during the meeting. Min. Entry Entry at
at 9:48:01 AM
22 (Mot. (Mot. Hearing, Aug. 15, Hearing, Aug. 15; 2024). This waiver 2024). This waiver stood
stood for
for over
over aa year
year and
and aa half.
hal£55 The
The AG
AG
23
24
5 5 SeeAnswer See AnswertotoStatement Statementofof Obj.
Obj. at 6 (Jul.
(Jul. 29,
29,2024)
2024)citing
citing.Peoplev. Bolotico,Crim. Case No. CM0188-24;People People Balatico,
25 v. Rosal, Rosol,Crim. Case No. CF0270-24, CF0270-24, andPeople
People v.v. Rik at,Crim. Case No. CF0423-24 Rikat, andShane CF0423-24 and ShaneTenorio Tenorio Healy,
"Akoma trial: Judge denies admission of AG evidence",Marianas Variety, November November 23,23, 2023,Akoma 2023, Akoma trial: Judge
26 evidence lI News
denies admission of AG evidence News II Marianas MarianasVarietv
VarietyNews
News &
&Views
Views (mvariety.com)
(mvariety.com)..
27 Decision Decision and and Order
Case No. CM0322-22, People People v.v. Keven Carter Enlet Page Page9~of
9of1414
14
1 cannot cannot rescind rescind the waiver now. Countless Countless criminal
criminal cases could be overturned, an
2 outcome that that would
would not
not "promote
"promote justice."
justice." Van Dex v. Superior Ct., 2008 Guam 77,r Van Dox 1]45 3 citing Eagle Eagle Mains.
Maint. & SSupple
upp CCo.
o v. Super. Ct.,, 16 Cal.Rptr.
Super. Cr. Cal.Rptr. 745, 745, 747
747
4 (Dist.Ct.App.1961 (Dist.Ct.App.1961).
5 b. San
SanAugustin
Augustin Does Not
Not Justify
Justify OAG's
OAG's Statement
Statementof
of0bjection
Objection
6 The OAG
OAG claims
claims that
that the San
San Augustin
Augustin opinion
opinion provides
provides additional
additional grounds
grounds on
7
8 which to require disqualification, "namely "namely the
the Supreme
Supreme Court's
Court's explanation
explanation and use of
and use of
8
9 9 its supervisory authority authority over the Superior Court of Guam's Guam's assignment
assignment of matters
matters to
10 disqualified disqualified judges." People's People's Resp.
Resp. to
to J. Tolentino's Answer
J. Tolentino's Answer to Statement of of Obj. 7 GCA
GCA
11 11 § § 6107 & Mot.
6107 & Mot. to to Disqualify
Disqualify at
at 3 (Aug. 8,
3 (Aug. 8, 2024).
2024). The
The OAG
OAGalso
also notes
notes that they filed
that they filed
12 . . . .
ofObi
their Statement of Objection echelonthe
theday
day after
after the Guam
Guam Supreme Court issued San Augustin.
Court Issued Augustin.
13 13 However,the Id. However, theGuam GuamSupreme
Supreme Court's
Court'ssupervisory
supervisoryauthority
authority was
was not
not invented
invented in
in July
July
14 14 2024, 2024; itithas has been in
in use for decades.See Angoco, 2006 Guam 18 ,r1]29 decades. See People v.v. Angoco, (holding 29 (holding
15 15 that the Guam that the Supreme Court's Guam Supreme Court's supervisory supervisory power is intended intended to "address extreme 16 16 17 cases, suchas cases, such aswhen whenthe
theSuperior
SuperiorCourt
Courtisisacting
actingin
inexcess
excessof
of its
its powers.").
Powers."). Further,
Further, in
17
18 18 San San Augustin, the Guam Supreme Supreme Court addressed
addressed"(
"(1) the manner in which judges are
19 19 appointed to review appointed to review the denial denial of
of disqualification
disqualification requests, and(2)
requests, and (2) the
the rights
rights of the
the
20 20 parties to briefing briefingand
and hearing
hearing once
once the
the review
review isis assigned
assigned td
tci a reviewing
reviewing judge
judge ... " San
79
San
21 . . . .
Guam 22 1134.
Augustin, 2024 Guam ,r 34. This Tels involves
involves judges reviewing reviewing disquawicatzon
disqualification requests, requests,
22 not not the the disqualification itself. As disqualification itself. As such, such, San
San Augustin
Augustin does
does not
not apply
apply to the
the
23 disqualification disqualification issue before us.
24
25
26
27 Decision and Decision and Order
Case No. CM0322-22, People v. Keven Keven Carter Enlet
Page 10 Page 10 of 14 11 c. Aguon c. Aguon is
is Not
Not Binding
Binding Precedent,
Precedent, But
But Even IfIt
Even If It Was,
Was, It Establishes
It Establishes
Precedent for
for a Defendant,
Defendant,Not
Notthe
theOAG
OAG
2 Although San Augustin is not relevant to the case, the same cannot be said for 3 Aguon, the first first instance
instance where a trial court disqualified disqualified Judge
Judge Tolentino because "a 4 reasonable person could question whether whether Judge Tolentino
Tolentino could
could be
be impartial
impartial in a case
5
6 6 proceeding at proceeding at the the direction
directionof
of[AG]
[AG] Moylan." of Guam Moylan." People of Guam v.v. Nakita Nikita T Aguon,
Aguon,
7 7 CM0145-21 at CM0145-21 (Super. Ct. Guam.
at 8 (Super. Guam. April 5, 5, 2024).
2024). This
This decision
decision isis not
not binding,
binding,
8 however, however, as as itit was
was not
not issued
issued by
by the
the Guam
Guam Supreme
Supreme Court.
Court. Further, objection in Further, the objection in the
9 9 case arose arose because
becausethe
theDefendant
Defendantfiled
filedaaMotion for Disqualification of Prosecutor (not Motion for
10 10 a Statement of Objection under Statement of under 77 GCA §§6105)
6105)and
andthen
thenthe
the Defendant
Defendant later
later argued
argued
11 11 during a hearing during hearing on March l,1,2024, 2024, that
that "there
"there had
had been
been an
anundisclosed
undisclosed familial
familial
12 12 relationship between Judge Tolentino and Douglas Moylan Moylan..." Id. atat 4-5.
4-5. Therefore, the
13 13 14 to obi holding in Aguon does not apply to objections sectionsby
bythe
theOAG,
OAG, but
but instead
instead to
to objections
objections by
14
15 15 Defendant. Even if a Defendant. if Aguon was binding precedent, precedent, AG Moylan cannot make the AG Moylan the
16 16 preposterous claim that there has been preposterous claim beeN an an "undisclosed
"undisclosed familial
familial relationship"
relationship" between
17 Judge Tolentino and himself. AG Moylan Moylan has
has known
known about
about this
this relationship for twenty
18 18 years and, Lmlike years unlike the the Defendant in Aguon, AG Moylan Moylan waived
waived the
the relationship
relationship in
19 19 December 2022.
December 20 AGMoylan's
d. AG Moylan'sWaiver
WaiverisisofofParticular
ParticularConcern,
Concern, Given
Given that
that the
the OAG
OAG
21 May be May be Attempting
Attempting to
to Manipulate
Manipulatethe the Criminal CriminalJustice
Justice System
System
22 the fact that
Finally, the that AG Moylan Moylan waived
waivedthe
the conflict
conflictand
and then
then seems
seems to have
have
23 of particular concern, rescinded that waiver is of concern, because because the
the Guam
Guam Supreme Court makes
24 it clear it clear that that 77 GCA
GCA §§ 6105
6105 "is
"is not
not intended to 'bestow
intended to 'bestow veto veto power
power over
over judges
judges or
or to
to be
be
25 used as aajudge used judgeshopping shoppingdevice.'"
device."' San Agustin v.
v. Superior Court of
Superior Court ofGuam,
Guam, 2024 Guam
26 ,r24 (quoting 2 1124 People v.
(quoting People v. Camaddu, Camaddu, 2015
2015 Guam ,r
Guam 22 1] 80 80 (quoting Nichole Nichols v.
v. Alley, 71
71
27 Decision Decision and
and Order
Case No. CM0322-22, People Peoplev.v. Keven
Keven Carter
CarterRunlet
Enlet
Page Page 1111 of
of 14
14 `-
1 F.3d 347, 351 th 351 (10th Cir. 1995)
Cir. 1995) (per
(per curiam);
curium), cf ,r 21 ("We cf Ada, 2000 Guam 22 1]21 ("We do do not
2 want to open a Pandora's box in which panties parties begin
begin drawing a judge's
judge's family tree each
3 time it seems that aa judge judge will
will rule
rule against
against them.").
them."). AG
AG Moylan
Moylan did not question his own 4 waiver with Judge Tolentino, until a year-and-a-half into AG year-and-a-half into AG Moylan's tenure, when 5 Judge Tolentino issued a major decision with which AG Moylan seriously disagreed.
6 In In that
that case, in the first decision to ever address case, in address aa Statement Statementof
of Objection
Objection by the
7
8 OAG Moylan's relationship OAG regarding AG Moylan's relationship with with Judge
Judge Tolentino,
Tolentino, the Honorable Maria
9 T. Cenzon notes notes that
that the
thetiming
timing of the OAG's
OAG's Objection
Objectionisis"suspect
"suspectbecause
because it comes
comes on
10 10 the heels the heels of Judge Tolentino's Decision of Judge Decision and and Order
Order issued
issued on April
April 25,
25, 2024,
2024, granting
granting
11 11 Defendant Sablan's Motion Defendant Sablan's Motion to to Disqualify the Office
Disqualify the Office of the Attorney Attorney General
General and
and
12 12 mandating that a special mandating special prosecutor prosecutor be appointed."
appointed." People of Guam v.
People of v. Richard Richard K
Y.
13 13 Yabnez, et. al, Yabnez, et. al, CF0447-23 at at 21 (Super. Ct. Guam.
Guam. June
June 12, 2024).
2024)- Since then,
then, and
and only
only
14 14 a few weeks after filing the Statement of of Objection in this case, AG AG Moylan published
15 15 an op op-ed in Pacy'ic Daily News in Pacific News, , confirming confir ming that
t ha t he
he seeks
eeks to over ur n his
overturn his own
own
16 16 disqualification by Judge disqualification by Judge Tolentino Tolentino in the very case noted by the the Honorable Maria
Maria T.
17 17
18 18 Cenzon:
19 19 We are concerned concerned that
that the Guam trial courts are engaging in Judicial Activism Activism
and re-writing
re-writing Guam law that expressly law that expressly requires that that the Guam
Guam Attorney
20 General be the public prosecutor and to provide legal services to to government officials who are only stewards of of the People, and are not the People of Guam, 21 by using "ethics rules" to disqualify this elected AG.
22 I believe it is wrong and we will wrong and seek to have it corrected either in this court or will seek
23 higher courts. 66 higher courts.
24
25 s6 Attorney Attorney General General Douglas
Douglas Moylan,
Moylan, "LETTER:
"LETTER:Court
Courtdecision
decisioninterferes
interfereswith
with elected
elected AG's
AG's ability
ability to fight
corruption", PacificDaily News, Daily News, June 2,
2, 2024, LE1TER: Court decision interferes LETTER: Court decision interferes with elected AG's ability ability to.
to. fight
26 corruptions IOpinion Opinion I guampdn.com.
I ,quampdn.com.
27 Decision Decision and
and Order
Case No.
No. CM0322-22,
CM0322-22, People
People v. Keven
Keven Carter
Carter Enlet
Page 12 of14 Page 12 of 14
The Court cannot discern if AG Moylan started disqualifying Judge Tolentino, because, 2 Moylan writes,
as AG Moylan writes, he isis "concerned "concerned that
that the
the Guam
Guam trial
trial courts
courts are
are engaging
engaging in
in Judicial
Judicial
3 4 wishes to Activism" and he wishes to find find aa better
better outcome
outcome with
with different
different Judge.
Judge. These
These circumstances
circumstances
4 surrounding AG Moylan's Moylan's sudden
sudden objection
objectionagainst
against Judge
Judge Tolentino,
Tolentino, after year-and-a-half of after aa year-and-a-half
5
66 not objecting, inform our decision about the waiver, waiver, because
because the
the Court should
should seek to avoid
7 "outcomes which lead "outcomes lead to to the
the manipulation of the
manipulation of the criminal criminal justice
justice system."
system." See People
People v.
8 Camaddu, Guam221],r 80 (stating that if a trial Camaddu, 2015 Guam trial court court recused
refused itself
itself "every
"every time it receives
99 unsolicited material material uncomplimentary
uncomplimentaryto
to aa defendant
defendantprior
prior to
to trial or sentencing [it] would create 10 10 . . . . _ . . . . _ ,, an intolerable intolerable situation sltuatlonwhich
which could
couldlead
leadto mampulatlonof
toaamanipulation ofthe
thecriminal justice system.").
carnal Justlce system. ). For
11 11 this reason, reason, and all
all of
of the
the reasons
reasons above,
above, the
the OAG's waiver should
OAG's waiver should be
be treated
treated as
as a failure to file
12 12 at the "earliest at the "earliest practicable practicable opportunity"
opportunity" under
under 77 GCA
GCA §§ 6107.
6107.
13 13 B. Does B, Does Judge Judge Tolentino
Tolentino Have
Have aa Disqualifying
Disqualifying Relationship Relationship that Creates Creates the
14 14 'Appearance 'Appearance of
of Bias' Under
Under 7 GCA 6105?
15 15 The Court declines to answer this question definitively. Given the waiver under
16 16 77 GCA GCA §§ 6107, 6107, it is not
it is not necessary
necessary for
for the
the Court to reach
Court to bias under alleged bias
the alleged
reach the under 7 7 GCA
GCA
17 . . . . . 1 6105, because 6105, because the the objection
objection is procedurally defective.
is procedurally defectlve. However, However, given the recent iven the recent
18 18 revelations in Aguon, Aguon, Defendants are not precluded from raising their objections. Only 19 19 the OAG is precluded.
20
21
22
23
24
25
26
27 Decisionand Decision and Order
Order
Case No.
No. CM0322-22, People
People v.
v. Keven Carter
Carter Engel
Enlet
Page 13 of14 Page
CONCLUSION AND ORDER
2 For the above reasons, the Court DENIES the OAG's Statement of Objection and 3 declines to disqualify the Honorable Alberto E. Tolentino. The Court returns this case to the 4 Honorable Alberto E. Tolentino.
5
6 SO ORDERED, this _G
.--,a -f:.l
_ day of_/_.Jt,~++-L_t_ _ _ _ 2024. _I_
/1 J
7
8
9
H ~ H N C. TERLAJE
11 Judge, Superior Court of Guam 12
13
14
15
16
17
18
19
20
21
22 SERVICE VIA-E-MMl.-
1acknowledge that an electronic copy of the original was e-mail~ to:
23 Ma ( ff'IU'.- 24
25
26
27 Decision and Order Case No. CM0322-22, People v. Keven Carter En/et Page 14 of14