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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).
28
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 stepstep
-
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
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 coparenting
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
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 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
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
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
28
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
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
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
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 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
20
21
22 HONORABLE ALBERTO C. c. LAMORENA, LAMORENA, III
Presiding Judge, Superior Court of Guam Presiding Guam 23 24 25
26
27
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 ickson Fritz Germickson Fritz
Page Page 11
11 of 11
ofll