People v. Hills

Opinion

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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

\

1"

1 i`

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 stepstep

-

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

r» f

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 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

*

.c

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

*

-. 1

|. 3`

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

Ir

1 r~ .. - \ a * ..

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

\

\ \

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

*

9 ~ ,

.. \/

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

15

16

17 HONORABLE ALBERTO C. c. LAMORENA, LAMORENA, III

Presiding Judge, Superior Court of Guam 18 18

19

20

21 21

22

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

27

28

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

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