People v. Hills

Opinion

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2 202~LERK AUG 3002AH znzuausao céu9~,01 AM 9:RT_O, _I Q 3 supERior@ oouRT~~ SUPERIOR COURT ( 4 QF OF QSJAM' GUAM 1 IN THE SUPERIOR SUPERIOR COURT OF GUAM 5

6 PEOPLE OF GUAM, Criminal Criminal Case Case No. CF0534-24 CF0534-24 GPD Report Nos. Nos. 24-17538 24-17538 /I24-17540 24-17540 // 7 v. 24-17541 8 DERICK DERICK EVAN BAZA HILLS DECISION AND ORDER 9 (aka DERICK DERICK BAZA HILLS), DENYING THE OAG'S DOB: 01/10/1988 STATEMENT OF OBJECTION 10 10 77 G.C.A. G.C.A. §§ 6107 6107 & & MOTION MOTION TO TO Defendant. DISQUALIFY 11 11

12 12 INTRODUCTION 13 13 This matter matter is is before before the theHonorable HonorableAlberto Alberto C. Lamorena, III C. Lamorena, III upon upon the the Office Office of of the Attorney the Attorney 14 General's 14 (the "OAG's") General's (the "OAG's") Statement Statement of ofObj section77G.C.A. Objection G.C.A. §§ 6107 6107 & & Motion Motion to to Disqualify Disqualify (the (the 15 "Objection"). 15 "Objection"). The TheOAG OAGobjects objectstotothe theHonorable Honorable Alberto Alberto E. E. Tolentino's Tolentino's ("Judge ("Judge Tolentino's") Tolentino's") 16 competency 16 competency to preside over the above-captioned matter the above-captioned matter under under77G.C.A. G.C.A. § § 6107. 6107. 17 17 Having considered Having considered the Objection, action,Judge JudgeTolentino's Tolentino's Answer, Answer, the the OAG's OAG's Response, Response, as as well as as 18 the applicable statutes 18 statutes and and case caselaw law and and all all relevant relevant portions of the record, this Court Court now issues issues the 19 19 following Decision Decision and Order DENYING and Order DENYING the theOAGs request OAG'.s requesttotodisqualify disqualifyJudge Judge.Tolentino .Tolentino and and reassignthis 20 reassign this case. case. 21 BACKGROUND 22 Defendant is charged with with Possession of ofaa Schedule Schedule IIII Controlled ControlledSubstance Substance (as 3rd Degree (as aa 3rd Degree

Theft by 23 Felony), Theft by Deception Deception (as (as aa Misdemeanor), Misdemeanor), and and Forgery (as a Misdemeanor) Misdemeanor) See Indictment Indictment (Aug. 8, 24 (Aug. 8, 2024). . .

25 Judge Tolentino Judge Tolentino was subsequently assigned to subsequently assigned to preside over this criminal case. See See Notice Notice of Judge Assignment 26 Judge Assignment (Aug. (Aug. 1, 2024). 2024).

27 On August 2, On August 2, 2024, 2024, the theOAG OAG filed filed their their Statement ofObjection Statementof G.C.A. §§ 6107 Objection77G.C.A. 6107 & & Motion Motion to to TheOAG 28 Disqualify. The OAGseeks seeksJudge Judge Tolentino's Tolentino'sdisqualification disqualification on on the following grounds: the following grounds:

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 CF0534-24,People of Guam v. CF0534-24, People of v. Derick Derick Evan Evan Baza BozoHills Hills Page 11 ofll f 11 \

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11 • • Judge Tolentino's Judge established history Tolentino's established history of of disqualifying himself from from matters matters in which 2 Moylan appeared Doug Moylan appeared as as private private counsel, counsel, prevents prevents Judge Judge Toler to from Tolento from handling handling 3 matters involving" matters involving the the OAG OAG now nowthat that Doug Doug Moylan Moylancurrently currently serves serves as as the the elected elected 4 General of Guam. Attorney General

5 • • Judge Tolentino' Tolentino'ss personal personal relationship with with Attorney Attorney General General Moylan Moylannecessitates necessitates his 6 disqualification in disqualification in matters matters involving involving the OAG. OAG. Judge Judge Tolentino Tolentino isis manned to Attorney married to Attorney

7 General Moylan's General ex-wife. and Moylan's ex-wife. and Attorney Attorney General General Moylan is the the father father of of Judge Judge 8 Tolentino' Tolentino'ss step-children. step-children.

9 See Objection at 22 (Aug. (Aug. 2, 2024).

10 On August 5, 2024, 2024, Judge Tolentino filed Judge Tolentino filed his his Answer Answer to to Objection Objection ("Answer"). ("Answer"). In In his his 11 response, 11 espouse, Judge Judge Tolentino Tolentino challenges challenges the the timeliness timelinessof of the the OAG's OAG's Objection. Objection. See Answer ,r 11 Answeratat11

12 (Aug. 12 (Aug.5,5,2024). 2024).Judge JudgeTolentino Tolentinoalso alsomade madethe thefollowing followingresponses, responses,under under penalty penalty of ofperjury, perjury, which

13 the 13 heCourt Courtfinds finds particularly particularlyrelevant relevant in in its its recusal recusal determination: determination: 14 14 • ii,r 6. That • ThatatatMr. Mr.Moylan's Moylan'srequest, request,aameeting meetingbetween betweenhim himand andthe theundersigned, undersigned, the undersigned's chamberstaff, undersigned's chamber staff,the the Administrator Administratorof of the the Courts, Courts, and and Mr. Mr. Moylan's 15 15 transition chairperson, chairperson,Mr. Mr.Wilfred Wilfred Aflague, Aflague, occurred occurred in in December December 2022. 2022. 16 16 • 117. • ,r 7. That at this meeting, Mr. Mr. Moylan Moylanassured assuredme meand and the the other other members members in in attendance 17 17 that he heperceived perceived no no conflict conflict in in his his election electionasas the Attorney AttorneyGeneral General and and the prosecution of of criminal criminal cases cases before before thethe undersigned. undersigned. It was was agreed agreed that that the thecircumstances circumstances 18 18 underlying my recusal mattersthat recusal in matters thatMr. Mr.Moylan Moylan was was aa lawyer lawyer nono longer existed, to 19 19 wit: that that during during my term term as the Magistrate Magistrate Judge andand as asaaJudge JudgeI Ihad hadroutinely routinelyrecused reused myself myself from from all all matters matters where Mr. MoylanMoylan waswas the the attorney attorney of aa party party before me on 20 the basis that that he he was the father father ofof my my minor minor step-children step-children and and that that the Minor minor step- step- children children were were members members of ofand and resided resided in in the household maintained by by me me and andmymywife wife 21 and that that as asof of even date, both step-children have now reached majority majority and adulthood and 22 and have have been been residing residing at their own own residences in in Guam and and in in the the U.S. U.S. Mainland.

23 •• 'll,r 8.8. That That Mr. Mr. Moylan Moylannever nevermade madean anappearance appearance as a lawyer lawyer in in this case. 24 •• 'H ,r 14. 14.That Thatmy mywife wife Doris Doris L.G. L.G. Tolentino Tolentino and Attorney Attorney General General Moylan Moylan were divorced 25 on June on 13, 1997, June 13, 1997,and andthat thathere therewere weretwo twominor minorchildren childrenat atthe thetime timeof of the dissolution of ofmarriage, marriage, to wit: Brandon Brandon (born (born 1990) 1990) and Angela (born 1992). and Angela 26 •• 11 ,r 17. 17. II have have never never observed observed Mr. Mr. Moylan Moylan and and my my wife wife involved involved in in any any sense sense in co- 27 parenting the children of of their their marriage marriage as as the children children have been raised and provided provided 28 with protection with protection and and care to ensure their healthy ensure their healthy development development into adulthood, adulthood, primarily primarily

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 Motion to toDisqualify Disqualify CF0534-24,People People of ofGuam Guam v. Derick Derick Evan Evan BozoHills Baza Hills Page 22 ofll of 11 »

1 1 bymy wife by wife and and me, me, and and that that at present they are in fact adults able to present they to conduct conduct and and make make their own decisions in life. 2

3 • • 1118. ,r 18. That based upon upon the the foregoing foregoing averments, the fact that that Attorney Attorney General General Moylan Moylan the biologica is the biological fa father of of the the under undersigned's stepchildren signed's stepchildr en provides ovides no ba basis for for 4 disqualification under 77 G.C.A. disqualification under G.C.A. §§6105(b) l05(b) or or that that the theundersigned's undersigned's "impartiality "impartiality might might reasonably be questioned" reasonably questioned" as as required requiredunder undersubsection subsection(a) (a). 5 5

6 • 1] • ,r 19. That "[u]nder 19. That "[u]nder subsection subsection 6105(a), 6105(a), what matters is not "actual bias", but "the appearance of bias." Van Dox bias." Van ,r (citing Dizon v. Super. Dox at1]32 Super. Ct. Ct. (People), 1998 Guam (People), 1998 7 ,r 10 3 1] 10 n.3). The appearance n.3). The appearance of of bias is judged from from the the standard standard of of aa "reasonable "reasonable knows all person" who knows all the the facts, facts, and and understands understands the the "contents "contents of of the the jurisdictions, jurisdictions, 8 parties, and parties, and controversies controversies involved," involved," including such "realities "realities of the Guam judicial system" as system" number of as the relatively small number of lawyers in in the Guam Guam bar bar and "the nature ofof 9 Guam families." Id.Id. (citation (citation omitted). 10 10 • 1130. • ,r 30. My My wife wife and and Mr. Mr. Moylan Moylan have have been been divorced divorced for for close close to to twenty-seven twenty-seven years 11 11 and that the the children children of of their their marriage are adults manage are adults living living on their own and well over the age of of majority and that nono reasonable person who knows all the facts and understands knows all 12 1 the contents of of the jurisdiction, jurisdiction, parties parties and and controversies controversies involved involved in the Guam judicial judicial 13 13 system t em would conclu concludede thatt tthere ex existss aan aappearance pp nce of bbias ia rrequiring equ ing my disqualification in this matter. 14 14 d. 15 16 On August 14, 2024, 2024, the the OAG OAG filed filed their their Response Response to to Judge Judge Tolentino's Tolentino's Answer 16 ("Response").The 17 ("Response"). TheOAG OAG asserts assertstheir theirObjection Objectionwas timelytiled, wastimely filed,being beingtiled filedjust just one one day day after after 17 18 Judge JudgeTolentino's Tolentino'sinitial initial assignment. assignment. See Response at 1-3 (Aug. 14, 14, 2024). 2024). The OAGOAG also 18 19 expands expandsonontheir theirargument argumenthatthatJudge JudgeTolentino Tolentinoisisbiased biased per per se, se, arguing Judge Tolentino's arguing that Judge Tolentino's 19 personalrelationship 20 personal relationshipwith withAttorney AttorneyGeneral GeneralMoylan Moylanhashasnot notsubstantially substantially changed changed and and continues continues to 20 21 provide provide aa basis for his disqualification. Id. at 3-6. 21 22 On On August August 5,5, 2024, this Court was assigned to address the Objection. See Notice of of 22 Assignment of Assignment Recusal Judge ofRecusal Judge (Aug. (Aug. 5, 2024). 23 DISCUSSION 24 I. 1. The The Law Governing Judicial Disqualification: 25 26 Judicial disqualifications Judicial disqualifications are are governed governed by by the the substantive substantiverules rulesof of77 G.C.A. G.C.A. §§ 6105 6105 and and the the 26 27 procedural rocedural rules off G.C.A. rules of7 G.C.A.§§6106 and6107. §§ 6106 and 6107.Section 6105 Section 6105defines definesthe thegrounds grounds for for disqualifications disqualifications 27 as follows: follows: 28

Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement StatementofofObjection Objection77G.C.A. G.C.A.§§6107 6107&&Motion Motion to to Disqualify Disqualify CF0534-24,People of ofGuam v.v. Derick Derick Evan Bozo Hills Baza Hills Page 33 ofll of 11 \

1 1 (a) Any Judge shall AnyJudge shall disqualify disqualify himself himselfor or herself herself in in any any proceeding proceeding inin which which his his or or her impartiality might reasonably be questioned, but if, following complete disclosure to 2 all parties parties in the proceeding of of the the reasons reasons for for disqualification, disqualification, all all parties agree to having the Judge continue to sit in the the proceedings, proceedings, he or sheshe need need not not disqualify disqualify 3 himself himself or or herself. 4 (b) AA Judge Judge shall shall also also disqualify disqualify himself himselfor or herself herself in the following following circumstances, but 5 ii if,following followingcomplete completedisclosure disclosuretotoall all parties parties in in the the proceeding proceeding of ofthe the reasons reasons for his or her disqualification, all parties disqualification, all parties agree agree toto having having the the Judge Judge continue continue to to sit in the 6 proceedings, he or she need not disqualify himself himself or herself: 7 (1) Where Whereheheororshe shehas hasa apersonal personalbias bias or or prejudice prejudice concerning concerning aa party, party, or 8 personal knowledge ofof disputed evidentiary facts facts concerning concerning the the proceeding; proceeding,

9 (2) Where Whereininprivate private practice practice he he or or she she served served as as aa lawyer lawyer in the the matter matter in 10 controversy, or a lawyer lawyer with whom he or he or she previously practiced law served during during such association as a lawyer or either has been aa material association as material witness witness 11 concerning the matter; matter,

12 (3) Where Where heheororshe shehas hasserved served iningovernmental governmental employment employment andand in in such such capacity participated as capacity participated as counsel, counsel, advisor advisor or or material material witness witness concerning the 13 proceeding or, as such government employee, employee, expressed expressed an an official official opinion 14 concerning concerning the merits merits of of the the particular matter in controversy; controversy,

15 (4) Where Wherehe heor orshe sheknows knowsthat thathe heor orshe, she, individually individuallyororas as aa fiduciary, fiduciary, or his or her spouse or minor child residing in in his or or her her household, household, has has aa financial financial 16 interest in the subject matter matter in controversy controversy oror is a party to the subject matter 17 in controversy controversy or or is a party to to the the proceeding, proceeding, or in any other interest that could be substantially affected byby the the outcome outcome of the proceeding; proceeding, 18 (5) Where he oror she or or his or her spouse, or a person person within within the third degree of of 19 relationship to either of of them, or or the spouse of of such person: 20 (A) isis aa party party to to the the proceeding, proceeding, oror an an officer, officer, director, director, or or trustee of of a 21 party; Patty; (B) is acting as a lawyer lawyer in in the the proceeding; proceeding, 22 22 (C) is known known by the JudgeJudge to have have an interest interest that could be substantially affected by the outcome of proceeding, of the proceeding; 23 (D) is to thethe Judge's Judge's knowledge knowledge likely likely to be a material witness in the 24 proceeding.

25 See 77 G.C.A. G.C.A. §§ 6105. 6105.

26 Section Section 6106 6106 compels compels aa judge judge to to disclose disclose aa disqualification disqualificationlisted listedunder § 6105 under§ 6105: 27 Whenever a Justice or Judge shall have knowledge Whenever knowledge of of any any fact fact or or facts which, under the provisions of 6 l05 provisions of 105 ofof this Chapter, disqualify disqualify him or her to sit or him or her to sit or act as such in any 28 action or proceeding pending before himhim or or her, it shall be his or her duty to declare

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 CF0534-24, People of ofGuam v.v. Derick Derick Evan Evan Baza BozoHills Hills Page of 11 Page 4 ofll s

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1 1 the same in open court and cause a memorandum thereof thereof to be be entered in in the minutes. minutes. It shall be the duty of of the clerk to transmit forthwith a copy of of such memorandum to 2 each party or his or her attorney who shall have appeared in such action or proceeding, except such parties as are presented in person or byby attorney when the declaration is 3 made. 4 See 7 G.C.A. G.C.A. §§ 6106. 6106. 5 If aa judge If judge fails fails to to disclose disclose aa disqualifying disqualifying factor under §6105, factor under§ 6105, then then any any party party to the action to the who action who 6 as appeared 77 has appeared in in the the case case may may raise raise the objection to the objection to competency. competency. In In this this regard, regard, §§ 6107 6107 provides provides as as

8 follows: follows: 9 Whenever a Justice or Judge who shall be disqualified disqualified under the provisions of this 10 Chapter to sit or act as such in any any action or proceeding action or proceeding pending before him or or her neglects or fails to declare his or her disqualification in the manner provided by this 11 11 Chapter, any party to such action or proceeding who has appeared therein may present to the court and file with the clerk clerk aa written written statement statement obi objecting to the hearing of of such 112 matter or any trial of any issue of fact fact or law in such action or proceeding before such Justice Judge, and Justice or Judge, and setting forth the fact or facts setting forth facts constituting constituting the ground of the 13 13 disqualification disqualification ofof such such Justice Justice or Judge. Judge. Copies Copies ofof such such written written statement statement shall shall 14 14 forthwith be served by the presenting party on each party, or his or her attorney, who has appeared in the action or proceeding and on the Justice or Judge alleged in such 15 15 statement to be disqualified. 16 16 Within ten (10) days after the service of of such statement as above provided, or or ten (10) 17 days after the filing of of any any statement, statement, whichever whichever is later later in in time, time, the the Justice Justice or Judge alleged therein to be disqualified may file with the clerk his or her consent in writing 18 18 that the action or proceeding proceeding continue without without himhim or her, her, or may may file with the clerk his or her written answer admitting or denying any or or all of the allegations all of the allegations contained contained 19 19 in such statement and Setting setting forth any additional fact or facts material or relevant to 20 the question of his or her disqualification. The clerk shall forthwith transmit a copy of the Justice's or Judge's consent or answer to each party or his or her attorney who shall 21 have appeared in such action or proceeding. proceeding. Every such statement and every answer shall shall be verified verified in the the manner manner prescribed prescribed forfor the the verification verification of of pleadings. pleadings. The 22 statement statement of of a party party objecting objecting toto the Justice Justice oror Judge Judge onon the ground ground of his or her 23 disqualification disqualification shall shall be be presented presented at at the earliest earliest practicable practicable opportunity opportunity after after his or her appearance and discovery of of the facts constituting constituting the the ground ground of of the Justice's or Judge's 24 disqualification, disqualification, and and in in any any event event before before the commencement commencement of of the hearing of any issue of of fact in the action or proceeding before such Justice or Judge. 25 No No Justice Justice or or Judge Judge who shall shall deny deny his his or or her her qualification qualificationshall shall hear hear or or pass pass upon upon the 26 question question of of his or or her her own own disqualification, disqualification, but but in every case case the question of the the question the 27 Justice's or or Judge's Judge'sdisqualification disqualification shall shall be be heard and determined by some sorrie other other Judge. Judge. The Presiding The Presiding Judge, Judge, or or next senior Judge, if it is the Presiding Judge, if Presiding Judge's Judge's disqualification disqualification 28 that is is being being requested, requested,shall shallmake makesuch suchassignment assignmentwithin withinfive five(5) (5) days days after after receiving receiving from the the clerk clerk the the notice notice that that the statement statement of of disqualification hashas been been filed. filed. In the

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 CF0534-24, People of ofGuam v.v. Derick Derick Evan Evan Baza BozoHills Hills Page 5 ofll of 11 I

1 1 case case of of aa Justice's Justice's disqualification, the matter shall shall be heard by the the Supreme Supreme Court Court constituted without the questioned questioned Justice. Justice. 2

3 Ifsuch If such Judge admitshis Judge admits his or orher herdisqualification, disqualification, or files files his his or or her her written written consent consent that that the action or proceeding be tried before another Judge, Judge,or orfails fails to to file file the answer within 4 the ten (10) days allowed, allowed, or or ififititshall shallbe bedetermined determinedafter afterthe thehearing hearing that that he or or she is disqualified, disqualified, the the action action or orproceeding proceedingshall shallbe beheard heardandand determined determined by by another another Judge Judge 5 of ofthe the Superior Superior Court Court who who is is not not disqualified. disqualified.Such Suchother otherJudge Judge shall shall be assigned in the same manner manneras asthe theJudge Judgewhowhowas wasdisqualified disqualifiedwas wasassigned assignedto tohear hearthethecase caseinitially. initially. 6 See 7 7 See 7 G.C.A. G.C.A. §§ 6107. 6107. 8,8 11. II. The Objection Objection is is procedurally procedurally sound, sound, being being timely timely filed filed at at the the earliest earliest practicable practicable 9 opportunity and prior to to any hearing before before Judge Tolentino.

10 10 The Court will first first address the procedural address the proceduralissue issueof ofwhether whetherthe theOAG's OAG's Objection was timely

11 filed. 11 filed.Judge JudgeTolentino Tolentinoinitially initiallyraised raisedthe theissue issueof oftimeliness, timeliness,stating stating "that "that neither neither Mr. Moylan Moylan nor nor the 12 12 . Office of Office ofthe theAttorney AttorneyGeneral Generalhad had ever challenged or everchallenged or objected objected to to me me presiding presiding over over this this case case until 13 13 4 the heinstant instant Statement of Objection Statement of Objection and andMotion Motionto to disqualify." disqualify." See Answer at ,r Answer at 1]9 (Aug. 5, 5, 2024). l 14 Where Where aa judge judge neglects neglects or or fails fails to to disclose disclosehis hisdisqualification disqualificationmandated mandated under under§§ 6105, 6105, §§ 6107 6107 15 15

16 16 provides rovides that that "any "anyparty partyto tosuch such action action or orproceeding proceedingwho whohas has appeared appeared therein therein may may present to the

17 17 court and file file with with the the clerk clerk aa written written statement statement obi eating to objecting hearing of the hearing to the of such matter matteror or any anytrial trial of of 18 any issue issue of fact fact or or law law in insuch such action action or or proceeding proceedingbefore beforesuch suchJustice Justice or or Judge, Judge, and setting setting forth 19 19 the fact or facts constituting the ground of the disqualification disqualification of ofsuch such Justice Justice or or Judge. of such Judge. Copies of 20 written ritten statement shall forthwith forthwith be be served served by by the the presenting presenting party party on on each each party, or his or her attorney, 21

22 who 22 hohas has appeared appeared in in the the action action or or proceeding andon proceedingand onthe the Justice Justice or or Judge Judge alleged alleged in in such such statement statement to

disqualified." See 7 23 bee disqualified." 7 G.C.A. G.C.A. §§ 6107. 6107. 24 Importantly, Importantly, §§ 6107 6107 mandates that"the mandates that "the statement statement of of a party objecting a party to the objecting to the Justice Justice or or Judge Judge 25 . n . . on the on the ground ground of ofhis hisororher herd1squa11ficat1on shall be disqualification shall be presented at the the earliest earliest practicable practicable opportunity 26 » ifter after his or her appearance and discovery of the facts constituting the ground or her appearance and discovery of the facts constituting the of the ground of the Justice's Justice's or or 27 udge 'sdisqualQ'ication, 28 ]edge's disqualification,and andininany anyevent eventbefore before the the commencement commencement of oftthe hearing of re nearing ofany any issue issue of of fact fact 28

Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement StatementofofObjection Objection77G.C.A. G.C.A.§§6107 6107&&Motion Motion to to Disqualify Disqualify CF0534-24,People CF0534-24, of Guam of v. Derick Guam v. Derick Evan Evan Baba Baza Hills Hills Page Page 66 ofll of11 *

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1l ininthe the action action or or proceeding before before such Justice or Judge." Judge." Id. (emphasis emphasis added). added). The The Guam Guam Supreme Supreme 2 Court 2 Court has has confirmed confirmed that that statements of objection statements of objection shall shall "be ''be presented presented at at the the earliest earliest practicable practicable 3 opportunlty opportunity after ... dlscovery discovery of ofthe the facts facts constltutlng groundfor constituting the ground for disqualification." dlsquallficatlon." See Van Dox Van Dox 4 4 v.. Super Super Ct., 2008 Guam Guam 7,r 7 144. 44. 5 "Aparty's "A party'sfailure failuretotocomply complywith withany anyofof theserequirements these requirementsconstitutes constitutes sufficient sufficient grounds grounds to x 6 7 strike strike or or disregard disregard the statement of objection." statement of objection." See People People v. Johnny, 2006 Guam 10 ,r1]11. v. Johnny, 11. Thus,

"withrespect 8 "with respecttotothe thestatutory statutory provision provisionrequiring requiring that that disqualification disqualificationbe be urged urged at at the 'earliest practical 9 opportunity] 9 opportunity,' the the intention intention is is 'clear 'clear that thatfailure to to comply comply with with the the provision constitutes constitutes aa waiver."' 10 10 See Van Dox v. Super Van Dox Super Ct., 2008 Guam 7,r'll 44 44 (quoting (quoting Caminetti Caminetti v. Pay. Mut. v. Pac. Mut. Ins. Ins. Co. Co. ofof Cal., 139 139 11 11 P.2d .2d 930, 930, 933 933 (Cal. (Cal. 1943) 1943) (emphasis (emphasis added)). added)). The TheGuam GuamSupreme SupremeCourt Courtapplied appliedthis this "si1ence-as- "silence-as- 12 13 waiver aiver rule" rule" in San San Union, Inc. v. Union, Inc. v. Arnold, Arnold, "to avoid the possibility possibility of 'lying 'lying in in wake, wake, raising raising the the 13 14 recusal 14 ecusal issue issue only only after after learning learning the the court's court's ruling ruling on on the the merits. merits."' Inc. v. " ' See San Union, Inc. v. Arnold,

15 2017 15 017Guam Guam10 ,r 27 10'H 27 (quoting Phillipe Phillips v. Amoco Amoco Oil Co., 799 F.2d 1464, 1464, 1472(11 th (nth Cir. 1986). 16 16 However, aa finding finding of oftimeliness timeliness "should "should be 'construed 'construed liberally' to to promote justice." See promote justice." 17 17 Van Dox Van v. Super Dox v. Super Ct., 2008 Guam ,r 45 (quoting Eagle Mains. Guam 77 1145 Maint. & Supply Supply Co. Co. v. v. Super. Super. Cr., Ct., 16 16 18 18 Cal.Rptr. 745, 19 Ca1.Rptr. 745, 747 (Dist.Ct.App. 1961)). AAtimely (Dist.Ct.App. 1961)). timelystatement statementofofobjection objectionisismade made "prior "priorto to any any hearing 19 20 eforethe 20 before thechallenged challenged judge judge in in the the matter." ,r 46. matter." Id. at 1146.

21 Here, Judge Tolentino was assigned Judge Tolentino assigned to tothis thismatter matteronly onlyone one(1) (1)day daybefore beforethe theOAG OAG filed their

22 Objection. Objection. See Notice Notice of ofJudge Judge Assignment (Aug. 1, 1, 2024), 2024); Objection (Aug. 2, 2, 2024). 2024). During During that that 23 timeframe, imeframe,Judge Judge Tolentino Tolentinodid didnot notpreside preside over overany anyhearings hearings or ormake make any any decisions decisions concerning concerning this case. Tbis 24 case. Thisleft lefthe theOAG OAGno noearlier earlieropportunity to raise opportunityto raise the issue of the issue of disqualification disqualification to to the theCourt. Court.While While

25 parties arties must must present statements statementsof of objection objection "at "at the the earliest earliest practicable practicable opportunity opportunity after his or her 26 appearance and discovery appearance and discovery of of the the facts facts constituting constituting the the ground ground of of the the Justice's Justice's or or Judge's Judge's 27 disqualification", disqualification",they theymust mustbe beafforded affordedthat that opportunity in the first place. See 7 opportunity in G.C.A. §§6107. 7 G.C.A. 6107. One One 28 (1) (1)day dayisissufficiently sufficientlywithin withinthe the"earliest "earliestpracticable practicable opportunity" opportunity" window, window, especially especially since since there there

Decision Decision and and Order Order Denying theOAG's Denying the OAG's Statement ofObjection Statement of Objection77G.C.A. G.C.A.§§6107 6107&&Motion Motionto toDisqualify Disqualify CF0534-24, Peopleof CF0534-24, People ofGuam v.v.Derick DerickEvan EvanBaza BozoHills Hills Page 7 ofll of11 *

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1 were ereno no hearings hearings before before the the challenged challenged judge in the interim. Id. Therefore, the Objection was timely

2 filed filed and and procedurally procedurally sound.

3 III. The The Objection Objection is is substantially substantiallydefective defective because: because: 4 a. Jude JudeTolent'mo Tolentino isis not notcompelled compelled to to disclose disclose his his personal personal connection to Attorney connection to 5 General General Moylan Moylan under under the the clear clear language of 77 G~C.A. language of G}C.A. §§ §§6105 6105 and and 6106. 6106. 6 The The only only circumstance circumstance in in §§ 6105 6105 requiring requiring disqualification disqualification (absent (absent aa waiver waiver following following

77 disclosure) disclosure) involving involvingthe the judge's judge'sspouse spouseisis§§6105(b)(5) 6105(b )(5) when the spouse when the spouse is is any any of: of: (A) (A) aa party party to the to the 8 8 proceeding, or an officer, director, director, or or trustee trustee of of aa party; party, (B) (B) acting acting as a lawyer lawyer in the proceeding; proceeding, (C) 9 I?) known own by by the the Judge Judge tO to have an interest that could be substantially affected by the outcome of the 10 11 proceeding, roceeding; or or (D) (D) is is to to the the Judge's Judge's knowledge likely likely to to be be aa material witness in the proceeding. See 11 12 12 77 G.C.A. G.C.A. §§ 6l05(b)(5). 6105(b)(5).

la 13 Judge Tolentino's Tolentino's spouse spouse is is not not aa party party to to the the proceeding, proceeding, or or an an officer, officer, director, director, or trustee of 14 aaparty. 14 party. She Sheisisnot notacting actingasasaalawyer lawyerininthe theproceeding, proceeding, nor nor is is she she known known by by Judge Judge Tolentino to have 15 15 an interest that could be substantially Substantially affected affected by by the the outcome outcome of of the the proceeding. proceeding. She She is not, to Judge 16 j Tolentino's olentino'sknowledge, knowledge, likely likelytoto be be aa material material witness witness in in the the proceeding. proceeding. Therefore, Therefore, none none ofof these 17 18 circumstances circumstances exist exist to to require require that that Judge Judge Tolentino invoke invoke the the mandatory disclosure disclosure requirements of 18 19 19 §§ 6106. 6106.

20 The circumstances of the OAG's objection objection differ differ notably from from the circumstances in People v. 21 antos, where 21 Santos, where the the Guam Guam Supreme Supreme Court Court found found the the provisions of §§ 6105(b) provisions of 6105(b) required required aa judge's judge's 22 2; disqualification disqualification(absent (absent aa waiver waiver following following disclosure) disclosure) when when that that judge judge was was related related within the third 23 24 degree egree to to the the Chief Chief Prosecutor Santos, 2018 Guam 12 ,r Prosecutor of the OAG. See People v. Santos, 118. 8. The Guam 24 25 25 Supreme SupremeCourt Court concluded concluded that that the the Chief ChiefProsecutor Prosecutor was acting acting as a lawyer lawyer in the proceeding, even if

26 they hey did did not not personally personally participate participate in the the case, case, due due toto their theirsupervisory supervisory responsibility responsibility over the

27 performance 27 erformance of of the the attorney attorney in in the proceeding. Id. at ,r the proceeding. 1113. 13. This This same same logic cannot be extended to 28 28 Attorney ttomey General General Moylan, Moylan, despite despite any supervisory supervisory involvement involvement he may have have in in this this case, case, because because

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 CF0534-24, CF0534-24, People of Guam v. People of v. Derick Derick Evan Evan Baza BozoHills Hills Page 8 ofll of 11 Q

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1 1 Attorney ttomey General General Moylan Moylan is is not not related related within the third degree the third degree to to Judge JudgeTolentino. Tolentino. Therefore, Therefore, 7 2 G.C.A. 2 G.C.A.§§6105(b) 6105(b)does doesnot notrequire require Judge Tolentino's disqualification Judge Tolentino's disqualification here. here. 3 b. Applying Applying the the "appearance "appearance of of impropriety" impropriety" standard, standard, Judge Judge Tolentino Tolentino was was not not 4 required required to to disclose under 77G.C.A. disclose under G.C.A. § 6105(a). § 6105(a). 5 Section Section 6105(a) requires that "any re_quires that "any judge judge shall shall disqualify himself or or herself herself in in any proceeding 6 6 in ·n which which his his or orher her impartiality impartiality might reasonably be questioned". See 7 might reasonably G.C.A. §§ 6105(a). 7 G.C.A. 6105(a). When When 7 7 considering considering disqualification under § 6105(a), disqualification under§ 6105(a), "what "what matters is not matters is not 'actual 'actual bias,' bias,' but but 'the 'the appearance appearance 8 8 of bias."' See Van Van Dox Dax v. v. Super Super Cr., Ct., 2008 2008 Guam ,r 32 (citing Guam 77 1132 (citing Dizon Dizon v. v. Super. Super. Co. (People), 1998 Ct. (People), 1998 9 ,r Guam 3 1]10 10n.3). n.3). The appearance appearance of of bias is judged judged from the standard of a "reasonable standard of "reasonable person" person" who 10 10 . . all the knows all the facts, facts,and andunderstands understands the the "contents "contentsofofthe thejurisdictions, jurisdictions,pa1:t1es, parties, and controversies controversies 11 11 involved," ·nvolved,"including includingsuch such "realities "realities of ofthe theGuam Guam judicial judicial system" system" as as the the relatively relatively small small number of number of 12 12 u .. . . . lawyers in in the Guam bar bar and and"the "thenature natureof ofGuam Guamfamilies." ,r 32 ((cltatlon families." Id. 1132 omitted). citation omitted). 13 13 The Michigan MichiganSupreme Supreme Court Court held that "the appearance appearance ofof impropriety" impropriety" standard standard applies only 14 14 . .o . . where there is no clear rule or canon pertaining to thesub] et matter. See Adair subject Adair v.v. State State of ofMichigan 15 15 Dept. ept. of ofEducation, Education, 474 Mich. 1027, 1027, 1039 (Jan.31, 1039 (Jan. 31,2006). 2006). The Court reasoned reasoned "specific "specific court court rules 16 16 or canons canons that that pertain to aa subject pertain to subject and and that that delineate delineate what what is is permitted permitted and and prohibited prohibited judicial judicial 17 17 conduct... conduct would would be be of oflittle littleconsequence consequence ififthey theycould couldalways always be becountermanded by the countermanded by the vagaries vagaries of of 18 18 an 'appearance 'appearance of of impropriety' standard". standard". Id. at 1039. ,19 19 In this instant In instantcase, case,the thenon-disclosure non-disclosureofofthe therelationship relationship complained complained oby the ofby theOAG OAG is covered 20 20 byy §§6105(5), 6105(5), which whichspecifically specificallylays laysout outwhen when aa judge's judge'srelationship relationship to to aa lawyer lawyer in in the the proceeding proceeding 21 21 warrants thatjudge's arrants that judge's disqualification. disqualification. Importantly, Importantly, by by listing listingthe the prohibited prohibited relationships relationships between a 22 22 lawyer awyerand and the the judge, judge, §§ 6105(5) 6105(5) also also states states which which relationships are permitted. relationships are permitted. Section Section 6105(5) 6105(5) lists lists 23 23 several prohibited relationships, relationships, and andbeing beingthe theex-partner ex-partnerof of the thejudge's judge's spouse spouse is is not not one one of them. them. 24 24 Because ecause §§6105(5) 6105(5)delineates delineateswhat what isis and and isn't isn'taa prohibited prohibited relationship, relationship, the the OAG OAGcannot cannot negate negate that that 25 25 rule by invoking the "appearance of impropriety" impropriety"standard. standard. 26 c. c. Under Under an an"objectively "objectivelyreasonable reasonable person" person" standard, standard, Judge Judge Tolentino Tolentino was not not 27 required required to to disqualify disqualify himself himselfin in this this case. case. 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 Motion to toDisqualify Disqualify CF0534-24,People of of Guam v.v.Derick Derick Evan Evan Baza BozoHills Hills Page 99 ofll of 11 \

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11 Even Even ifif§§6l05(a) 6105(a)was waspermitted permittedtotobypass bypassthe theclear clearrule rulepertaining pertaining to to this this challenged challenged 2 relationship, elationship, no no objectively objectivelyreasonable reasonable person person would would question question Judge Tolentino's impartiality here. Judge Tolentino's here. 3 The American Bar Association ("ABA") ("ABA") acknowledged acknowledgedthat that"judges "judgesare areordinarily ordinarilyin inthe the best best 4 position ositionto toassess assess whether whether their their impartiality impartiality might might reasonably reasonably be questioned questioned when lawyers lawyers or or parties parties 5 with ithwhom whomthey they have have relationships ... appear before them." appear before them." See ABA ABAFormal FormalOp- Op. 488 488 (Sep. 5, 5, 2019). 6 The heABA ABAalso alsonotes notesthat that"in "insmaller smallercommunities communitiesand andrelatively relativelysparsely-populated sparsely-populated districts, districts, judges 7 may ay have have social socialand and personal personal contacts contacts with with lawyers lawyers and and parties parties that that are are unavoidable. unavoidable. In In that that 8 circumstance, ircumstance, too strict strict aa disqualmcation disqualification standard standard would be impractical to to enforce enforce and and would would otentially disrupt 9 potentially disrupt the the administration administrationofofjustice." justice."Id. Q (emphasis added). The ABA emphasis added). ABA also also recognizes recognizes 10 10 that hat over over time time relationships relationships change "or may change "or may have have ended ended sufficiently far far in in the the past past that that it is not aa ll current 11 currentconcern concern when when viewed objectively." QId."Finally, judges "Finally, must judges mustavoid avoiddisqualifying disqualifyingthemselves themselves

12 too 12 oo quickly quicklyor ortoo toooften oftenlest litigantsbe lestlitigants beencouraged encouragedto touse use disqualification disqualification motions motions as as a means means of 13 13 judge-shopping, ·udge-shopping, or orother otherjudges judges in in the the same same court ... become overburdened."Id. become overburdened." Q .

14 14 Adopting the Adopting the recommendations recommendations of the ABA ABAin inits itsFormal FormalOpinion Opinion488, 488, based based on on the obi ective objective 15 15 reasonable easonable person person standard, andconsidering standard, and consideringthe theAnswer Answer filed filed by Judge Judge Tolentino and and the judicial 16 16 community community and and context context in which which the the disqualification disqualification is sought, the Court sought, the makes the Court makes the following

17 17 findings: findings:

18 18 • • The circumstances circumstances previously previously requiring requiring Judge Judge Tolentino Tolentino to to disqualify disqualify himself have

19 19 changed and, changed and, by by Attorney General General Moylan's Moylan's own own admission admission during during the the meeting meeting 20 between himself, his staff, Judge between Judge Tolentino, and court staff, and the court staff, any any conflict conflict relating to

21 the familial association between Judge association between Judge Tolentino Tolentino and andAttorney Attorney General General Moylan Moylan "no

22 longer existed." existed." See Answer at ,r Answer at 117 (Aug. 5, 7 (Aug. 5, 2024). 2024). Therefore, Therefore, Judge Judge Tolentino is is not 23 required to disqualify required to disqualify himself himself under§ under § 6105(a). 6105(a).

24 • • The relationship between Attorney General Moylan Moylanand and Mrs. Mrs. Tolentino Tolentinoended endedon on June June 25 13, 1997. Id. at ,r'H14. 13, 14. Therefore, Therefore, the the relationship has ended ended sufficiently far far in in the the past 26 that it it is is not not aa current currentconcern concernwhen whenviewed viewedobjectively. objectively.

27 • • Attorney General Moylan Moylan and and Mrs. Tolentino's Tolentino's children children are now grown grown adults adults living 28 on their own, which which poses poses another another significant significant change change in in relationships. Id. at ,r,r 7, 14. at 11117, 14.

Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement Statementof of Objection Objection77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CF0534-24,People CF0534-24, People of ofGuam v. v. Derick Derick Evan Evan Bozo Hills Baza Hills Page 10 of 11 *

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1 1 • In In Guam's Guam's small small legal legal community community and and with with aa trial trial court consisting of court bench consisting of only four

2 2 (4) (4) dedicated dedicated criminal criminal Court dockets, requiring Judge court dockets, Judge Tolentino, Tolentino, who is one of the four

3 3 (4) (4) judges judges assigned to the assigned to the criminal criminal docket, docket, to to disqualify disqualify himself himself pursuant pursuantto§ to §6105(a) 6l05(a)

4 all cases from all cases in in which which Attorney Attorney General General Moylan Moylan represents represents the the People People of Guam Guam

5 would: (a) be be impractical impractical to enforce, (b) (b) negatively negativelyimpact impactthe the efficient efficientadministration administration

6 ofjustice, of justice, and and (c) (c) lead leadtotojudge-shopping judge-shoppingand/or and/or overburden overburden the judges in in the the same same

7 court.

8 CONCLUSION US

9 For the reasons stated above, the Court DENIES the OAG's Objection. Objection. Judge Judge Tolentino Tolentino is

10 not notrequired requiredtotodisclose disclosehis hispersonal personal relationship relationship with with Attorney Attorney General General Moylan, Moylan, nor nor is he required

ll 11to to disqualify disqualifyhimself himselfunder § 6105. under§ 6105.

12 August use 30 30 13 13 IT IT IS ISSO SO ORDERED ORDEREDthis this up 1' 14 14

17 HONORABLE ALBERTO C. c. LAMORENA, LAMORENA, III Presiding Judge, Superior Court of Guam 18 18

21 21

23 SERVICE VIAE- MAIL SERVICE VIA"E-MML 24 lI l1cll:nowledge :knowledge cho! that an electronic electrnnlr copy original WiS copy of the origin•! was e-mail~ e-mallndto: to: . Mr /Rb, rr {)t);;r .Msg _, --- 25 '(`ZD*'5F.L¢v\ 26

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 CF0534-24, People of of Guam v. v. Derick Derick Evan Evan Baza BabaHills Hills Page Page 11 ofll f 11