11 FI l ED p
QLEQK ClERI( GF OFFCQURT COURT 2 28211 SEP 202~ SEP -3-3 PM PF?3:3:33 33 3 35?§?§§ SUPERiOR CQQJRT COURT 4 QF #Q .L OF~UAM 5
6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, Criminal CriminalCase Case No. CM0224-24 8 GPD Report GPD Report No. No.24- 24-17417 v. 9 DECISION AND ORDER 10 GERMICKSON FRITZ, DENYING THE OAG'S 10 DOB:03/16/2001 DOB: 03/16/2001 STATEMENT OF OBJECTION 11 11 77 G.C.A. G.C.A. §§6107 6107 & & MOTION MOTION TO TO Defendant. DISQUALIFY 12 12
13 13 INTRODUCTION 14 14 is before This matter is before the the Honorable HonorableAlberto Alberto C. C. Lamorena, Lamorena, III III upon the the Office Office of of the Attorney
15 General's 15 (the "OAG's") General's (the "OAG's") Statement of Objection Statement of Objection 77 G.C.A. G.C.A. §§ 6107 6107 & & Motion Motion to to Disqualify Disqualify (the (the 16 16 "Objection"). The OAG OAG objects objects to to the the Honorable Honorable Alberto E. Tolentino's Tolentino's ("Judge Tolentino's") ("Judge Tolentino's")
17 competency 17 competency to to preside over the preside over above-captioned matter the above-captioned matter under under77G.C.A. G.C.A. § § 6107. 6107.
18 18 Having Having considered considered the Objection, Objection, Judge JudgeTolentino's Tolentino's Answer, the the OAG's OAG's Response, Response, as as well as as
19 19 the applicable statutes and case statutes and case law law and and all all relevant relevant portions of of the the record, this this Court Court now now issues issues the 20 following Decision Decision and Order DENYING and Order DENYING the theOAG's OAG'srequest requesttotodisqualify disqualifyJudge Judge Tolentino Tolentino and and 21 reassign this case.
22 BACKGROUND 23 Defendant is charged with with Driving Driving While WhileImpaired Impaired(as (as aa Misdemeanor) Misdemeanor) and and Opened Opened Container 24 of of Alcohol Alcohol (as (as aa Misdemeanor) Misdemeanor) following following aa traffic traffic accident. accident. See Magistrate's Magistrate's Complaint Complaint (Jul. (Jul. 29, 25 2024).
26 Judge Tolentino was Judge Tolentino was subsequently subsequently assigned to to preside over this criminal case. See Notice Notice of 27 Judge Assignment Judge Assignment (Aug. (Aug. 1, 2024).
Decision Decision and OrderDenying and Order Denyingthe theOAG's OAG's Statement StatementofofObjection Objection77G.C.A. G.C.A. §§ 6107 & Motion 6107 & Motion to to Disqualify Disqualify CM0224-24, Peopleof CM0224-24, People ofGuam Guam v. Germ icksonFritz Germickson Fritz Page11 of 11 ofll 1 On August 2, On August 2024, the 2, 2024, the OAG OAG filed filed their their Statement Statement of Objection 77 G.C.A. of Objection & Motion 6107 & G.C.A. §§ 6107 Motion to to
Disqualify.The 2 Disqualify. TheOAG OAGseeks seeksJudge JudgeTolentino's Tolentino'sdisqualification disqualificationon onthe thefollowing followinggrounds grounds::
3 • • Judge Tolentino's Tolentino's established established history of of disqualifying himself himself from matters in which
4 Moylan appeared Doug Moylan appeared as as private private counsel, counsel, prevents prevents Judge Judge Toler to from handling Tolento
5 5 matters involving matters involving the the OAG now now that that Doug Doug Moylan Moylan currently currently serves serves as the elected elected 6 Attorney General of Guam.
7 • • Judge Tolentino's Tolentino's personal personal relationship relationship with with Attorney Attorney General Moylan Moylan necessitates his 8 disqualification in matters matters involving involving the OAG. OAG. Judge Judge Tolentino Tolentino is married man'ied to Attorney 9 General al Moylan's Moylan's ex-wife. and Attorney ex-wife. and ney General Gener al Moylan Moylan is is the father father of of Judge Judge 10 Tolentino's Tolentino's step-children. step-children.
11 11 See Objection Objection at at 2 (Aug. 2, 2024). 12 On August August 5, 5, 2024, 2024, Judge Judge Tolentino Tolentino filed his his Answer Answer to to Objection Objection ("Answer"). ("Answer"). In his
13 response, esponse, Judge Judge Tolentino Tolentino challenges the timeliness of the OAG's OAG's Objection. Objection. See Answer ,r 11 Answeratat11 14 (Aug. (Aug. 2, 2, 2024). 2024). Judge JudgeTolentino Tolentinoalso also made madethe thefollowing followingresponses, responses, under under penalty penalty of of perjury, which
15 the heCourt Court finds finds particularly particularly relevant in its recusal determination: 16 16 • 116. • ,r 6. That That at at Mr. Moylan's Moylan's request, a meeting between him and and the the undersigned, the undersigned's chamber staff, undersigned's the Administrator staff, the of the Administrator of the Courts, and Mr. Courts, and Mr. Moylan's 17 17 transition chairperson, Mr. Wilfred Aflague, Aflague, occurred in December 2022.. occurred in December 2022 18 • 117. • ,r 7. That at this this meeting, meeting, Mr. Mr. Moylan Moylan assured assured me me and and the the other other members members in attendance 19 he perceived that he perceived no conflict in his election as the the Attorney Attorney General and the prosecution prosecution of of criminal criminal cases cases before before the the undersigned. undersigned. It waswas agreed agreed that that the the circumstances circumstances 20 underlying mymy recusal recusal in in matters that Mr. Moylan was a lawyer no longer longer existed, to 21 wit: that during my term as as the the Magistrate Magistrate Judge Judge and and as as aaJudge JudgeI Ihad hadroutinely routinelyrecused reused myself myself from allall matters where Mr. Moylan was the attorney of a party before before me me on 22 the basis that that he he was the father of my minor step-children minor step-children and that the minor minor step- step- members of children were members of and resided in the household household maintained by me and my wife 23 and that as as of of even even date, date, both both step-children step-children have have now now reached majority and adulthood 24 and have been been residing residing at their own residences in Guam Guam and and in the U.S. Mainland.
25 • 1]8. • ,r That That Mr. Mr. Moylan Moylan never never made madean anappearance appearance as as aa lawyer lawyer in in this case. 26 • 1114. • ,r 14. That my my wife Doris L.G. L.G. Tolentino Tolentino and Attorney Attorney General General Moylan Moylan were were divorced 27 on June 13, 1997, and that that there there were were two two minor minor children at the time of the dissolution ofrnarriage, of marriage, to wit: Brandon (bam (born 1990) 1990) and Angela Angela (born (born 1992). 1992). 28
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0224-24, People of Guam of Guam v. Germ ickson Fritz ickson Fritz Page 2 ofll of 11 11 • 11 • ,r 17. 17. II have have never never observed observed Mr. Mr. Moylan and and my my wife wife involved involved in in any any sense sense in co- parenting the parenting the children of of their marriage manage as as the the children children have have been been raised and provided 2 with protection with protection and and care to ensure their healthy ensure their healthy development development into adulthood, adulthood, primarily primarily 3 by my wife wifeand andme, me, and and that that at at present they are in in fact fact adults adults able able to to conduct conduct and and make their own decisions decisions in inlife. life. 4 • 1118. • ,r 18. That based basedupon uponthe theforegoing foregoing averments, averments,the thefact factthat thatAttorney AttorneyGeneral GeneralMoylan Moylan 5 is the the biological biological father father ofofthe theundersigned's undersigned's stepchildren provides no stepchildren provides no basis basis for 6 disqualification disqualification under under 77 G.C.A. G.C.A. §§ 66105(b) l05(b) or orthat that the undersigned' s"impartiality the undersigned's "impartiality might might reasonably be questioned" as as required under subsection subsection(a). (a). 7 • 11 • ,r 19. 19. That "[u]nder subsection 6l05(a), what subsection 6105(a), what matters "actual bias", but "the matters is not "actual 8 appearance appearance of of bias." bias." Van Van Dox Dox at ,r 32 at 'll 32 (citing (citingDizon Dizon v. Super. Super. Ct. Ct. (People), (People), 1998 1998 Guam 9 ,r 10 n.3). 3 'll Theappearance n.3). The appearance ofofbias bias isis judged judged from from the the standard standard ofof aa "reasonable "reasonable person" who who knows knows allall the thefacts, facts, and and understands the "contents of the understands the the jurisdictions, 10 10 parties, parties, and controversies involved," including such "realities of the Guam and controversies involved," including such "realities of the Guam judicial system" asas the relatively relativelysmall small number number of oflawyers lawyersin inthe the Guam Guam barbar and "the nature of nature of 11 11 Guam families." Id. (citation Guam families." citation omitted). 12 12 • ,r 30. • 'll 30. My My wife wifeand and Mr. Mr. Moylan Moylanhave havebeen been divorced divorced for for close closeto to twenty-seven twenty-seven years years 13 13 thatthe and that childrenof thechildren of their their marriage marriage are areadults adultsliving living on on their their own own and andwell well over the age of majority and that no reasonable person who knows all the facts and understands of majority and that no reasonable person who knows all the facts and understands 14 14 the contents of of the jurisdiction, jurisdiction, parties and andcontroversies controversies involved involved inin the Guam judicial judicial system system would conclude that there exists an appearance of bias requiring my would conclude that there exists an appearance of bias requiring 15 15 disqualification disqualification in in this this matter. 16 16 Id. 17 17 On August 14, 2024,the 14, 2024, theOAG OAG filed filed their Response Response to to Judge JudgeTolentino's Tolentino's Answer 18 18 ("Response"). ("Response").The TheOAG OAGasserts assertstheir theirObjection Objectionwas was timely timely filed, filed, being being filed filedjust just one one (1) day day after after 19 Judge Tolentino's initial Judge Tolentino's initial assignment. assignment. See Response at 1-3 Response at 1-3(Aug. (Aug. 14, 14,2024). 2024). The The OAG also 20 20 expands on their their argument argumentthat thatJudge JudgeTolentino Tolentino is is biased biased per perse, se, arguing arguingthat thatJudge JudgeTolentino's Tolentino's 21 personal relationship with Attorney Attorney General GeneralMoylan Moylanhas hasnot notsubstantially substantiallychanged changed and and continues to 22 22 provide provide aa basis for his disqualification. Id. at 3-6. 23 On August August 1, 1, 2024, this Court was assigned to to address theObjection. address the Objection. See Notice of 24 Assignment ofRecusal Judge (Aug. 1, Judge (Aug. 1, 2024). 25 DISCUSSION 26 I. The Law Law Governing Governing Judicial Judicial Disqualification: Disqualification: 27
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0224-24, People People of ofGuam Guam v. v. Germ icksonFritz Germickson Fritz Page 3 of 11 ofll 11 Judicial disqualifications Judicial disqualifications are aregoverned governed by by the the substantive substantiverules rulesof of 77 G.C.A. G.C.A. §§ 6105 6105 and and the the
2 2 procedural rocedural rules off G.C.A. rules of7 G.C.A.§§6106 §§ 6106and6107. and 6107.Section Section6105 6105defines definesthe thegrounds grounds for for disqualifications disqualifications
3 as as follows: follows:
4 (a) Any AnyJudge Judgeshall shalldisqualify disqualifyhimself himselfor orherself herselfin inany anyproceeding proceedingin in which which his his or or her impartiality might reasonably be questioned, reasonably be questioned,butbutif,if, following following complete complete disclosure disclosure to 5 all parties parties in the proceeding proceeding of the the reasons reasons for for disqualification, disqualification, all parties parties agree to having the Judge continue to Judge continue to sit in the the proceedings, proceedings, he he or she she need not disqualify disqualify 6 himself or herself. herself 7 (b) (b) AAJudge Judgeshall shallalso also disqualify disqualifyhimself himselfororherself herselfin inthe the following followingcircumstances, circumstances, butbut 8 if, if, following complete disclosure to all parties in the proceeding of the reasons for his following complete disclosure to all parties in the proceeding of the reasons for or her her disqualification, all parties disqualification, all agree to having the parties agree the Judge continue to Judge continue to sit in the the 9 proceedings, he or she she need need not notdisqualify disqualify himself himself or herself: herself: 10 (1) Where Whereheheororshe shehas hasa apersonal personalbias bias or orprejudice prejudice concerning concerning aa party, party, or 11 personal personal knowledge of of disputed disputed evidentiary facts concerning the proceeding; proceeding, 12 12 (2) Where Whereininprivate privatepractice practiceheheor orshe sheserved served as as aa lawyer lawyer in in the the matter matter in in 13 13 controversy, or or a lawyer lawyer with with whom whom hehe or or she she previously practiced law served during during such association as such association as aa lawyer or or either either has has been been aa material material witness witness 14 14 concerning the matter, matter;
15 15 (3) Where Whereheheororshe shehas hassewed servediningovernmental governmentalemployment employment andand in in such such capacity capacity participated participated asas counsel, counsel, advisor or material material witness concerning the 16 16 proceeding proceeding or, as as such government employee, such government employee, expressed an official expressed an official opinion opinion 17 17 concerning the merits of the particular matter in in controversy; controversy,
18 18 (4) (4) Where Wherehe heororshe sheknows knowsthat that he he or or she, she, individually individually or or as as aa fiduciary, or or his or her spouse or minor child child residing residing inin his his or or her her household, household, has has a financial 19 19 interest in the subject matter in controversy or or is is aa party party to to the the subject subject matter matter 20 in in controversy controversy or or is is aa party party to the the proceeding, proceeding, or or in in any any other other interest interest that could be substantially affected by the outcome of substantially affected of the proceeding; proceeding, 21 (5) (5) Where Whereheheororshe she or orhis his or orher her spouse, spouse, or a person within the the third third degree degree of of 22 relationship to either either of ofthem, them, or or the the spouse spouse of ofsuch such person: person: 23 (A) (A)isisa aparty partytotothe the proceeding, proceeding, or an officer, officer, director, director, or or trustee Mstee ofof a 24 party; party, (B) (B)isisacting acting as as aa lawyer lawyer in in the proceeding; proceeding, 25 (C) (C)isisknown knownby bythetheJudge Judge to to have havean an interest interest that that could could be substantially 26 affected affected by the the outcome of of the proceeding; proceeding, 26 (D) (D)isisto tothe the Judge's Judge's knowledge knowledge likely likelytotobe beaa material material witness witness inin the 27 27 proceeding.
28 See 7 G.c.A. §§ 6105. 7 G.C.A. 6105.
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0224-24, People People of ofGuam Guam v. Germ ickson Fritz Germickson Fritz Page 4 ofll of 11 11 Section Section 6106 6106 compels compels aa judge judge to to disclose disclose aa disqualification disqualificationlisted listedunder under§§6105 6105::
2 Whenever Whenever a Justice or Judge shall have knowledge knowledge of of any any fact fact or or facts facts which, under the provisions provisions of of 6105 ofof this Chapter, disqualify disqualify him him or or her her to to sit sit or or act as such in any 3 action or proceeding pending before him or or her, her, itit shall shall be his or her her duty to declare 4 the same in open court and cause a memorandum memorandum thereofthereof to be entered in the minutes. It shall be the duty of the clerk to transmit forthwith forthwith aa copy copy ofof such memorandum memorandum to 5 each party or his his or or her her attorney attorney who who shall have have appeared in such action or proceeding, proceeding, except such parties as as are are presented presented in person or by attorney when the declaration is 6 made. 7 7 See 77 G.C.A. G.C.A. §§ 6106. 6106. 8 If aa judge If judge fails fails to to disclose disclose aa disqualifying disqualifying factor under §§ 6105, factor under then any 6105, then to the party to any party the action action who who 9 as appeared 10 has appeared in in the case may the case may raise raise the the objection to competency. objection to competency. In In this this regard, regard, §§ 6107 6107 provides provides as as 10 11 11 follows: follows:
12 12 Whenever a Justice or Judge who shall shall be be disqualified disqualified under the provisions provisions of of this Chapter to to sit or act act as as such such in in any any action action or proceeding proceeding pending pending before him or her 13 13 neglects or fails to declare his or her disqualification fails to disqualification inin the the manner manner provided by this Chapter, any party to to such such action action or or proceeding proceeding who has appeared therein may present 14 14 to the court and file with the clerk clerk aa written written statement statement obi ecting to objecting to the hearing of of such 15 15 matter or any trial ofof any issue issue of fact or or law law in in such such action action or or proceeding proceeding before such Justice Judge, and setting forth the fact Justice or Judge, fact or facts facts constituting the ground constituting the ground of the 16 16 disqualification disqualification of of such such Justice Justice or or Judge. Judge. Copies of of such such written written statement statement shall shall forthwith be sewed served byby the the presenting presenting party party on on each each party, party, or or his or or her attorney, who 17 17 has appeared in in the action action or proceeding proceeding and on the Justice or Judge alleged in such 18 18 statement to be disqualified.
19 19 Within ten ten (10) days after the service of of such statement statement as above provided, or or ten (10) days after the filing filing of any statement, whichever whichever is later in time, the Justice or Judge 20 alleged therein to be disqualified may file with the clerk his or her consent in writing 21 proceeding continue without him or her, or may file with the clerk that the action or proceeding his or her written answer admitting or denying any any or or all of of the allegations contained 22 in such statement and setting setting forth forth any any additional additional fact fact or or facts facts material or relevant to the question ofof his or her disqualification. The clerk shallshc!,ll forthwith transmit a copy of 23 the Justice's or Judge's consent or answer answer to each party or his or her her attorney who who shall 24 have appeared in such action or proceeding. Every such statement and every answer shall shall be verified verified in the the manner manner prescribed prescribed for for the the verification verification of of pleadings. pleadings. The 25 statement statement of party objecting to the Justice or Judge on the ground of his or her of a party objecting to the Justice or Judge on the ground disqualification disqualification shall shall be be presented presented atat the the earliest earliest practicable practicable opportunity opportunity after after his or her 26 appearance and discovery discovery of of the facts constituting the ground ground of of the Justice's or Judge's disqualification, and in any event event before before the the commencement commencement of ofthe the hearing hearing of of any issue 27 of of fact in the action or proceeding proceeding before such Justice or Judge. 28
Decision Decision and OAG's Statement and Order Denying the OAG's of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0224-24,People People of ofGuam Guam v. v. Germ icksonFritz Germickson Fritz Page 5 ofll of 11 1 1 NoJustice No Justice or Judge who shall or Judge shall deny deny his his or or her her qualification qualificationshall shall hear hear oror pass pass upon upon the question of question of his oror her her own own disqualification, disqualification, but but in every every case case the the question question of the the 2 Justice's or or Judge's Judge'sdisqualification shall be disqualification shall be heard and determined by some some other other Judge. The Presiding Presiding Judge, or next senior Judge, Judge, or Judge, ifif it is the Presiding Presiding Judge's Judge's disqualification disqualification 3 that is is being being requested, shallmake requested,shall makesuch suchassignment assignmentwithinwithinfive five(5) (5) days days after after receiving receiving 4 from the from the clerk clerk the the notice notice that statement of that the statement of disqualification hashas been been filed. In the filed. In ofaa Justice's case of Justice's disqualification, disqualification, the the matter shall shall be heard by the the Supreme Supreme CourtCourt 5 constituted without the questioned Justice. Justice. 6 Ifsuch If such Judge admits his or her her disqualification, or files disqualification, or files his his or orher her written written consent consent that that 7 the action or proceeding be tried before another Judge, before another Judge, or or fails fails to file the answer within file the the ten (10) orififititshall allowed, or (10) days allowed, shallbe bedetermined determinedafterafterthe thehearing hearingthat that he he or or she she is 8 disqualified, the disqualified, the action or proceeding action or proceedingshall shall be beheard heard and and determined determined by by another another Judge Judge ofthe of the Superior Superior Court Court whowho is is not not disqualified. disqualified.Such Suchother otherJudge Judge shall shall be be assigned assigned in in the 9 same manner as as the theJudge whowas Judgewho wasdisqualified disqualified was assigned to hear the the case case initially. initially. 10 10 See 7 G.C.A. G.C.A. §§ 6107. 6107. 11 11 II. 11. The Objection Objection is is procedurally procedurally sound, sound, being being timely timely filed filed at at the the earliest earliest practicable practicable 12 12 opportunity and prior to to any hearing before before Judge Tolentino. 13 13 The Court will will first first address the procedural address the proceduralissue issueof ofwhether whetherthe theOAG's OAG's Objection was timely 14 14 filed. Judge Judge Tolentino Tolentinoinitially initiallyraised raisedthe theissue issue of oftimeliness, timeliness, stating stating "that "that neither Mr. Moylan Moylan nor nor the 15 15
16 Office 16 Officeofofthe theAttorney AttorneyGeneral Generalhad hadever everchallenged orobjected challengedor objectedto tome mepresiding presiding over overthis this case case until until
17 17 the he instant Statementof instant Statement of Objection Objection and andMotion Motionto to disqualify." disqualify." See Answer Answer at at 119 (Aug. 5, 2024). ,i 9 (Aug. 18 18 Where aa judge Where judge neglects neglects or or fails fails to to disclose disclosehis hisdisqualification disqualificationmandated mandated under under§ 6105, 6105, §§ 6107 6107 19 20 provides rovides that that "any "anyparty partyto tosuch such action action or orproceeding proceedingwho whohashasappeared appeared therein therein may may present to the 20 court and 21 court and file filewith withthe theclerk clerkaawritten statement obi writtenstatement objecting to the hearing of of such matter or such matter or any any trial trial of of 21 any issue 22 any issue of offact factor orlaw lawininsuch actionor suchaction orproceeding proceedingbefore beforesuch suchJustice Justice or or Judge, Judge, and and setting forth
hefact 23 the factor orfacts facts constituting constitutingthe the ground ofthe ground of the disqualification disqualificationofofsuch suchJustice Justice or or Judge. of such Judge. Copies of such 24 written 24 rittenstatement statementshall shallforthwith forthwithbe beserved servedby thepresenting bythe presentingparty partyon oneach each party, party, or or his his or or her attorney, 25 25 who has appeared in in the the action or proceeding and and on on the the Justice or Judge alleged alleged in in such such statement to 26 disqualified." See 7 26 be disqualified." G.C.A. §§ 6107. 7 G.C.A. 6107. 27
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement StatementofofObjection Objection77G.C.A. G.C.A.§§6107 6107&&Motion Motionto toDisqualify Disqualify CM0224-24,People People of ofGuam Guam v. Germ icksonFritz Germickson Fritz Page 66 ofll of 11 1 Importantly, §§ 6107 6107 mandates mandates that "the statement of aa party party objecting objecting to to the the Justice Justice or or Judge Judge
2 on 2 on the the ground ground of of his or her disqualification shall shall be at the be presented at the earliest earliest practicable practicable opportunity opportunity 3 3 after ifter his his or or her herappearance appearance and and discovery discovery of ofthe the facts constituting constituting the the ground ground of ofthe the Justice's Justice's or 4 udge 'sdisqualyication, ; Judge's disqualification,and in in and any anyevent eventbefore beforethe commencementof thecommencement ofthe the hearing hearingof ofany any issue issue of fact offact 5 6 in the action or proceedingbefore before such Justice or Judge." Judge." Id. (emphasis emphasis added). added). The The Guam Guam Supreme Supreme 6 7 Court Court has has confirmed confirmed that that statements statements of of objection objection shall shall "be "bepresented presented at at the the earliest earliest practicable practicable
8 opportunity opportunity after ... discovery of ofthe the facts facts constituting the the ground groundfor fordisqualification." disqualification." See Van Dox Van Dox 9 9 v.. Super Super Cr., Ct., 2008 Guam ,r Guam 77 'll 44. 10 "A "Aparty's party'sfailure failuretotocomply complywith withany anyofofthese theserequirements requirementsconstitutes constitutes sufficient sufficient grounds grounds to 11 12 strike strike or or disregard disregard the the statement statement of objection." See People v. Johnny, Johnny, 2006 Guam 10 ,r 11. 10 11 11. Thus, 12 13 13 "with "withrespect respectto to the the statutory statutory provision requiring that disqualification disqualification be urged at the the 'earliest 'earliest practical
14 opportunity opportunity,'the theintention intention is is 'clear 'clear thatfailure failure to to comply comply with with the the provision provision constitutes constitutes a waiver."' a n
15 See Van Dox 15 v. Super Dex v. Super Ct., if 44 (quoting Ct., 2008 Guam 7 1144 Caminetti v.v. Pac. (quoting Caminetti Pay.Mut. Mai.Ins. Ins.Co. Co.of Cal., 139 offal.,
16 .2d 930, 16 P.2d 930, 933 933 (Cal. (Cal. 1943) 1943) (emphasis (emphasis added)). added)). The The Guam Guam Supreme Supreme Court Court applied applied this this "silence-as- "silence-as- 17 waiver rule" rule" in San San Union, Union, Inc. Inc. v. v. Arnold, "to "to avoid avoid the the possibility possibility of of 'lying 'lyingininwake, wake, raising raising the the 18 18 19 recusal ecusal issue issue only after learning the court's learning the court's ruling ruling on on the the merits."' merits."' See San San Union, Union, Inc. v. Arnold, Inc. v. 19 20 20 2017 017Guam Guam 10 ,r 27 (quoting 10 1127 (quoting Phillipe Phillips v. Amoco Oil Co., 799 v. Amoco 799 F.2d 1464, 1472(11 1464, 1472 th (nth Cir. 1986).
21 However, aa finding finding of oftimeliness timeliness "should "should be be 'construed 'construed liberally' to to promote promote justice." See 22 Van 22 Van Dox Dox v.v. Super Super Ct., Ct., 2008 Guam Guam 77 1145 ,r quoting Eagle 45 (quoting Eagle Mains. Ma int. & Supply Supply Co. Co. v. v. Super. Super. Cr., Ct., 16 16 23 Cal.Rptr.745, 23 Cal.Rptr. 745, 747 747 (Dist.Ct.App. (Dist.Ct.App.l96l)). 1961)).A timely statement A timely ofobj statement of objection made"prior section isismade any hearing to any "priorto hearing 24 efore the j g before the challenged judge in in the matter." ,r 46. matter." Id. at 1146. 25 26 Here, Judge Tolentino Tolentino was assigned assigned to to this thismatter matteronly onlyone one(1) (1) day daybefore before the the OAG OAG filed their 26 27 Objection. Objection. See Notice Notice of ofJudge Judge Assignment (Aug. 1, 1, 2024), 2024); Objection Objection (Aug. 2, 2, 2024). During During that that 27 28 timeframe, imeframe,Judge JudgeTolentino Tolentinodid didnot notpreside presideover overany anyhearings hearingsor ormake makeany anydecisions decisions concerning concerning this this 28
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0224-24, People People of ofGuam v. Germickson Guam v. Germickson Fritz Fritz Page 7 ofll of 11 11 case. case.This Thisleft leftthe theOAG OAGno noearlier earlieropportunity opportunity to to raise raise the issue of disqualification disqualification to to the the Court. Court. While While
arties must 2 parties must present present statements of objection statements of objection "at "at the the earliest earliest practicable practicable opportunity opportunity after his or her
3 aappearance p r a nc e and a nd discovery c over y of of the ffacts a c cconstituting ons u t ing the t he ground of t the ou nd of he J Justice's u s t ic or J Judge's or u dge'
disqualification",they 4 disqualification", theymust mustbe beafforded affordedthat that opportunity opportunity in in the first place. See 77 G.C.A. the first G.C.A. §§ 6107. 6107. One One
(1) day 5 (1) day isis sufficiently sufficiently within within the the "earliest "earliest practicable practicable opportunity" window, especially since there
ereno 6 were nohearings hearings before before the the challenged judge in challenged judge in the interim. Id. Therefore, Therefore, the theObj Objection section was was timely timely
filed and 7 filed and procedurally procedurally sound.
III. 8 111. The The Objection Objection is is substantially substantiallydefective defective because: because:
9 a. Jude Jude Tolentino Tolentinoisisnot notcompelled compelled totodisclose disclose his his personal personal connection to Attorney connection to
10 10 General General Moylan Moylan under underthe the clear clear language language of of 77 G.C.A. G.C.A. §§ §§ 6105 6105 and and 6106. 6106.
11 11 The only only circumstance circumstance in §§ 6105 6105 requiring requiring disqualification (absent aa waiver following disqualification (absent following
12 disclosure) 12 disclosure) involving involvingthe the judge's judge's spouse spouse is§§ 6105(b)(5) 6l05(b)(5) when the spouse whenthe spouse is any of: is any of: (A) (A)aaparty party to to the the 13 roceeding, or an officer, 13 proceeding, officer, director, or trustee trusteeof of aa party; party, (B) (B) acting as a lawyer lawyer in the the proceeding; proceeding, (C) (C) 14 E known by the the Judge Judge to have an an interest that could interest that could be substantially affected by substantially affected by the the outcome outcome of the the 15 16 proceeding, roceeding;or (D)isistotothe or(D) theJudge's Judge's knowledge knowledge likely likelytotobe beaamaterial material witness witness in in the the proceeding. See 16 17 17 77 G.C.A. G.C.A. §§ 6105(b)(5). 6105(b)(5).
18 18 Judge Tolentino's Tolentino's spouse spouse isis not not aa party party to to the the proceeding, proceeding, or or an an officer, officer, director, director, or or trustee of of
19 aaparty. 19 party. She Sheisisnot notacting acting as as aa lawyer lawyer in the proceeding, proceeding, nor nor is she known by Judge Tolentino to have 20 20 an interest that that could could be be substantially substantially affected affectedby by the the outcome outcome of of the the proceeding. proceeding. She She is not, to Judge 21 Q; Tolentino's olentino's knowledge, knowledge, likely likely to to be be aa material material witness in the proceeding. proceeding. Therefore, Therefore, none ofof these 22 23 circumstances exist to require that Tolentino invoke invoke the the mandatory mandatory disclosure disclosure requirements of 23 circumstances exist to require that Judge of
24 24 §§ 6106. 6106.
25 The circumstances of the circumstances of the OAG's OAG's objection objection differ differnotably notablyfrom fromthe thecircumstances circumstances in in People People v. v. 26 , . . . Santos, where the antos, where the Guam Guam Supreme Supreme Court Court found found the the provisions provisions of of §§ 6105(b) 6105(b) required required aa judge's ]edge's 27 disqualification (absent absent aa waiver waiver following following disclosure) when that judge was related within the third 28 degree to the Chief Chief Prosecutor of the OAG. See People v. Santos, Santos, 2018 Guam 12 ,i118. 8. The Guam Decision Decision and OrderDenying and Order Denyingthe theOAG's OAG's Statement Statementof of Objection Objection 77G.C.A. G.C.A. §§ 6107 6107 & & Motion Motion to to Disqualify Disqualify CM0224-24,People People of ofGuam Guam v. v. Germ iekson Fritz Germickson Fritz Page 8 ofll of 11 SupremeCourt 1 Supreme Court concluded concluded that that the the Chief Chief Prosecutor Prosecutor was acting as a lawyer lawyer in the proceeding, even if
22 they hey did did not notpersonally personally participate participate in the the case, case, due due toto their theirsupervisory supervisory responsibility responsibility over the the 3 ,r 13. 3 performance of the attorney in the proceeding. Id. at 11 13. This This same logic cannot be extended to 4 ttomey General 45 Attorney General Moylan, Moylan, despite despite any any supervisory supervisory involvement involvement he may havehave in in this this case, case, because because 5 ttomey General 6 Attorney General Moylan Moylan isis not not related related within the the third third degree to Judge Tolentino. Therefore, 7 Tolentino. Therefore, 6
77 G.C.A. G.C.A. §§6105(b) 6105(b) does does not not require Judge Tolentino's require Judge Tolentino's disqualification disqualification here. here.
8 b. Applying Applying the the "appearance "appearance of of impropriety" impropriety" standard, standard, Judge Judge Tolentino was not Tolentino was not 9 required required to to disclose disclose under under 77 G.C.A. G.C.A. §§ 6105(a). 6105(a). 10 10 Section 6105(a) requires requires that that "any "any judge judge shall disqualify himself himself or herself herself in any proceeding
11 in·nwhich ll whichhis hisororher herimpartiality impartialitymight mightreasonably reasonably be questioned". See 77 G.C.A. be questioned". G.C.A. §§ 6105(a). 6l05(a). When When 12 12 considering considering disqualification under § 6105(a), disqualification under§ 6l05(a), "what "what matters is not matters is not 'actual bias,' but 'actual bias,' but 'the 'the appearance appearance 13 of of bias."' See Van Dax Dox v. Super Cr., Ct., 2008 Guam if (citing Dizon v. Super. Guam 77 1132 Super. Ct. Ct. (People), (People), 1998
Guam33'll,r 10 n.3). 14 Guam n.3). The The appearance appearance of of bias is judged judged from from the standard of a "reasonable person" who 15 knows ows all all the the facts, facts, and andunderstands understands the the "contents "contents ofofthe thejurisdictions, jurisdictions, parties, parties, and and controversies controversies 16 involved," ·nvolved," including such "realities of the Guam judicial system" as the relatively small number of 17 lawyers awyers ininthe the Guam Guam bar bar and ,r 32 (citation omitted) and "the nature of Guam families." Id. 1132 omitted). 18 18 The Michigan Supreme Court held that "the appearance of impropriety" standard applies only
19 where herethere there isis no no clear clear rule rule or or canon canon pertaining pertaining to to the the subject subject matter. See Adair v. v. State State of ofMiehigan Michigan 20 Dept. ept. of ofEducation, Education, 474 Mich. 1027, 1039 (Jan. (Jan. 31, 31, 2006). 2006). The The Court Court reasoned "specific court rules 21 or or canons canons that that pertain pertain to to aasubject subject and and that thatdelineate delineate what what isispermitted permitted and and prohibited prohibited judicial judicial 22 conduct... conduct .would wouldbe beof oflittle littleconsequence consequence ififthey they could could always always be be countermanded countermanded by the vagaries of 23 an an 'appearance 'appearance of ofimpropriety' impropriety' standard". standard". QL Id. at 1039. 1039. 24 In this instant case, case, the the non-disclosure non-disclosureof ofthe therelationship relationshipcomplained complainedofby oby the the OAG OAG is covered 25 25 byy§§6105(5), 6105(5), which which specifically specifically lays lays out out when when aa judge's judge's relationship relationship to to aa lawyer lawyer in in the the proceeding proceeding 26 warrants arrants that that judge's judge's disqualification. disqualification. Importantly, Importantly,by bylisting listingthe theprohibited prohibited relationships relationships between a 27 27 lawyer awyerand andthe the judge, judge, §§ 6105(5) 6105(5) also also states states which which relationships relationships are permitted. Section are permitted. Section 6105(5) 6105(5) lists lists 28 several several prohibited prohibited relationships, relationships, and being the ex-partner of the judge's judge's spouse is not one of of them.
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CM0224-24,People of Guam v. Germickson Fritz People of Guam v. Germickson Fritz Page 9 ofll of 11 11 Because ecause§§6105(5) 6105(5) delineates delineates what what is is and and isn't isn't aa prohibited prohibited relationship, relationship, the the OAG OAG cannot cannot negate negate that that
2 rulele by byinvoking invokingthe the "appearance "appearance of of impropriety" impropriety" standard. standard.
3 3 c. c. Under Under an an"objectively "objectivelyreasonable reasonable person" person" standard, standard, Judge Judge Tolentino Tolentino was not not
4 himself in this case. required to disqualify himself
5 Even Even if if §§ 6105(a) 6105(a) was was permitted permitted to to bypass bypass the the clear clear rule rule pertaining pertaining to to this this challenged challenged
6 relationship, elationship, no no objectively objectively reasonable reasonable person would question Judge Tolentino's impartiality here.
7 The American Bar Association ("ABA") acknowledged acknowledged that "judges "judges are ordinarily in in the best
8 position ositionto to assess assess whether whether their their impartiality impartiality might might reasonably reasonably be be questioned questioned when when lawyers or or parties
9 with ithwhom whom they they have have relationships relationships ... ... appear appear before them." See ABA ABA Formal Formal Op. Op. 488 (Sep. 5, 2019).
10 The he ABA ABAalso also notes notes that that "in "insmaller smallercommunities communities and and relatively relatively sparsely-populated sparsely-populated districts, districts, judges
ll mayayhave 11 havesocial socialand andpersonal personalcontacts contacts with withlawyers lawyers and andparties parties that that are are unavoidable. unavoidable. In that that circumstance, too 12 circumstance, disqualification standard too strict a disqualmcation standard would be impractical impractical to enforce enforce and would would otentially disrupt the administration 13 potentially administration ofjustice." Id. (emphasis added). ofjustiee." added). The The ABA ABA also also recognizes recognizes
14 that hat over over time time relationships relationships change "or may have have ended ended sufficiently sufficiently far in the past that it is not a
15 current current concern concern when viewed objectively." Id. "Finally, "Finally, judges judges must must avoid disqualifying themselves 16 too oo quickly quickly or or too too often often lest lest litigants litigants be be encouraged encouraged to to use use disqualification disqualification motions as a means of of
17 judge-shopping, ·udge-shopping, or or other other judges judges in in the same court ... become overburdened." overburdened." Id. l
18 Adopting the recommendations of of the ABA ABA in in its Formal Opinion Opinion 488, 488, based on the objective 19 reasonable easonable person person standard, standard, and considering considering the Answer filed by Judge Judge Tolentino and the judicial 20 community community and and context context in in which which the the disqualification disqualification is sought, sought, the the Court Court makes makes the the following following 21 21 findings: findings:
22 • • The circumstances previously requiring circumstances previously requiring Judge Tolentino Tolentino to disqualify disqualify himself have 23 changed and, by Attorney changed and, Attorney General General Moylan's own own admission admission during during the the meeting meeting 24 between himself, his staff, staff, Judge Judge Tolentino, and and the court staff, any conflict relating to 25 the familial association between Judge Tolentino Tolentino and Attorney Attorney General General Moylan "no 26 Answer at ,r longer existed." See Arlswer 117 (Aug.5,5,2024). 7 (Aug. 2024). Therefore, Therefore, Judge Judge Tolentino Tolentino is not
27 required to disqualify required to disqualify himself himself under under§ 6105(a). 6105(a). 28
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0224-24,People People of ofGuam Guam v.v. Germ GermicksonnFritz Fritz Page Page 10 of 11 ofll 1 • • The relationship between Attorney General Moylan and Mrs. Tolentino Tolentino ended on June
2 2 13, 1997. Id. at ,r1114. 13, 14. Therefore, Therefore, the relationship has ended sufficiently sufficiently far far in the past 3 that it is is not not aa current current concern concern when when viewed objectively.
4 • • Attorney General Moylan and Mrs. Tolentino's children are now grown adults living
5 their own, on their own, which whichposes posesanother anothersignificant significantchange changeinin relationships. relationships. Ld,Id. at at ,r,r 14. 11117, 6 • • Guam's small In Guam's small legal legal community communityand and with withaa trial trial court of only four court bench consisting of 7 (4) dedicated criminal court dockets, requiring Judge Tolentino, who who is is one one of of the four 8 (4) judges assigned (4) judges assigned to to the the criminal criminal docket, docket, to to disqualify disqualify himself himselfpursuant pursuant to to§ 6105(a) 6105(a) 9 which Attorney from all cases in which Attorney General General Moylan Moylan represents represents the People of Guam 10 10 would: (a) be impractical to to enforce, (b) (b) negatively negatively impact the efficient administration 11 11 of justice, and (c) of (c) lead to judge-shopping and/or overburden overburden the the judges judges in the same 12 court. 13 CONCLUSION 14 For the reasons stated above, the Court DENIES the OAG's Objection. Judge OAG's Objection. Judge Tolentino Tolentino is
notrequired 15 not requiredtotodisclose disclosehis hispersonal personalrelationship relationship with with Attorney Attorney General General Moylan, Moylan, nor nor is is he he required required
16 16 totodisqualify disqualifyhimself himselfunder under§ 6105. 6105. 17 17
lb 18 IT IS SO ORDERED this Sep. 3, 2024 19
22 HONORABLE ALBERTO C. c. LAMORENA, LAMORENA, III Presiding Judge, Superior Court of Guam Presiding Guam 23 24 25
Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&& Motion Motion to to Disqualify Disqualify CM0224-24,People People of ofGuam Guam v.v. Germ ickson Fritz Germickson Fritz Page Page 11 11 of 11 ofll