FI l ED
CLERK GF
OF CGURT
COURT
11 2821: aUG 202~ AUG 2929PM
PH3:3: 45
15
2 2 6UP3'QiG§ QQURT
3 3 GF {z",.5,4\l'vE
IN THE SUPERIOR COURT OF GUAM COURT OF GUAM
4
5 5 OF GUAM,
THE PEOPLE OF GUAM, 6 6 Case CM02I1-24 Case No. CM0211-24
7 7 vs.
8 DECISION AND ORDER JOEL T. LAXAMANA (Answer (Answer to
to OAG's
OAG'sStatement
Statement of Objection)
Objection)
DOB: 02/05/1967 9
10 10 Defendant.
11
12
13 INTRODUCTION
14 14 This matter came before matter came before the
the Honorable JohnC.
Honorable John C. Terlaje th Terlaje on August l15"', 2024, 2024, for aa
15 15 Motion Hearing regardingthe Hearing regarding theOffice Office of
of the
the Attorney General's ("OAG's")
Attorney General's Statement of ("OAG's") Statement
16 16 Objection Objection ("Objection"), in in which
which the
the OAG
OAG objects
objects to
to the
the Honorable Tolentino E. Tolentino
Honorable Alberto E.
17 17 ("Judge Tolentino")
Tolentino") presiding
presiding over
overthe
theabove-captioned
above-captioned matter
matter due
due to
to his
his relationship
relationship with
18 18 Attorney General Attorney General Douglas DouglasMoylan
Moylan("AG
("AG Moylan"
Moylan" or
or "then-Attomey
"then-Attorney Moylan"). Upon Moylan"). Upon
19 19 consideration of the consideration of argumentsand the arguments andapplicable applicableGuam
Guamlaw,
law,the
theCourt
Courthereby DENIESOAG's
herebyDENIES OAG's
20 Objection. Objection. As Assuch,
such, Judge Tolentino may Judge Tolentino may continue continue to preside over
over this
this matter.
matter.
21
22 BACKGROUND
23 This case case began on July
July 15, 2024,when
15, 2024, whenthe
theAttorney
Attorney General
General of Guam Joel T.
accused Joel
Guam accused T.
24 Laxamana ("Defendant") with the Laxamana ("Defendant") the offense offense of Driving
Driving While
While Impaired
Impaired (As Misdemeanor).
(As aa Misdemeanor).
25 Magistrate's Magistrate's Con pl. (Jul.
Compl. (Jul. 15, 2024). The 15,2024). Thematter
matterwas
wasassigned
assignedto
toJudge
Judge Tolentino July18th, onJuly
Tolentinoon 18th ,
26
27 27 Decision Decision and
and Order
Order
Case Case No. CM0211-24, Peoplev.Joel CM0211-24, People Joel TT. Laxamana Laxamana
Page11 of 14
2024. Notice 2024. of J.
Notice of J. Assignment
Assignment (Jul.
(Jul. 18,
18, 2024).
2024). Then,
Then, on July 19th , 2024, July 19th 2024,the
theOAG
OAG filed aa
2 Statement of Statement Objection and of Objection and Motion to Disqualify Disqualify Judge
Judge Tolentino
Tolentino based
based on his
his alleged
alleged
3 4 relationship withAG relationship with Moylan. Statement AG Moylan. of Obj.
Statement of Obj. 77 GCA
GCA §§ 6107
6107 &
& Mot.
Mot. to
to Disqualify.
Disqualify. (Jul.
(Jul. 19,
19,
4 5 2024). Judge 2024). Judge Tolentino answered the Tolentino answered Statementof the Statement of Objection Objection on July
July 29,
29, 2024.
2024. Answer to
5
6 6 Statement of Statement (Jul. 29, 2024).
of Obj. (Jul. 2024). The matter matter was then assigned
assigned to
to this
this Court
Court in the
the limited
7 ofRecusal Judge capacity of Judge on July July 30,
30, 2024. Notice of Assignment 2024.Notice Assignment of ofRecusal J. (Jul.
Recusal J. (Jul. 30, 2024).
8 The OAG OAG responded responded to
to Judge
Judge Tolentino's
Tolentino's answer
answer on
on August
August 8,
8, 2024.
2024. People's Resp. J.
Resp. to J.
9 9 To1entin0'sAnswer Tolentino's AnswertotoStatement StatementofofObj.
Obj.77GCA
GCA §§ 6107
6107&& Mot.
Mot. to
to Disqualify
Disqualify (Aug.
(Aug. 8,
8, 2024).
2024).
10 10 Defendant gave their answer as well on on the same date.
date. Def.'s
Def.'s Resp. to Gov't's
Gov't's Statement
Statement of
ofObj
Obj.
11 11 (Aug. (Aug. 8, 8, 2024).
2024). The
TheCourt
Courtthen
then took
tookthe
the matter
matter of
ofJudge
Judge Tolentino's
Tolentino'sdisqualification disqualification under
under
12 12 advisement. advisement.
13 13 A. Attorney AttorneyGeneral
GeneralMoylan's
Moylan'sRelationship
Relationship with
withJudge
Judge Tolentino
14 14 It It is
is undisputed thatJudge
undisputed that JudgeTolentino Tolentinoisismarried
marriedtotoAG
AGMoylan's
Moylan's ex-wife,
ex-wife, Doris
Doris L.G.
15 15
16 Tolentino ("Der"is"), ("Doris"), and
and that
that Judge Tolentino is
Judge Tolentino is the
the stepfather
stepfathertotoAG
AG Moylan's
Moylan's two children,
children,
16 17 17 Brandon (born 1990) andAngela 1990) and Angela (born 1992). Answer to 1992). Answer to Statement Statement of
ofObj.
Obj. at
at 33 (Jul.
(Jul. 29, 2024).
18 18 AG Moylanand AG Moylan andDoris Dorisdivorced
divorcedinin1997,
1997,and
and then,
then, in
in 2005,
2005, Doris
Doris remanded to Judge
remarried to JudgeTolentino, Tolentino,
19 19 who remains herhusband remains her husbandtotothis day.Id.IdAs thisday. As recently recently as
as October
October2022,
2022,prior
priortotoAG
AG Moylan's
Moylan's
20 20 election, Judge Tolentino disqualified Judge Tolentino disqualified himself himself from cases involving then-Attorney cases involving then-Attorney Moylan in 21 private practice, because because"Douglas
"Douglas Moylan, Esq., is the the father
father of
of my step-children." Id. at my step-children." at 24-26, 22 Exs. A-C. Exs. A-C.
23 A month
month later,
later, on
on November
November 8,
8, 2022,
2022, then-Attomey
then-Attorney Moylan
Moylan was
was elected
elected Attorney
Attorney
24 General of of Guam and became
Guam and becameAG
AG Moylan, taking office in taking office in January 2023.Id.
January 2023. Id at 2.
2. Before
Before being
25 26 sworn in as Attorney General, however, then-Attomey as Attorney then-Attorney Moylan Moylanrequested
requested aa meeting
meeting with
with Judge
Judge
26
27 Decision Decision and
and Order
Case No. CM0211-24, People v.
CM021 l-24, People v. Joel T. Laxamana Laxamana
Page 2 of 14
Tolentino in in December
December 2022.
2022. Id. The meeting
Id The meeting took
tookplace
place in
inJudge
Judge Tolentin0's
Tolentino's chambers
chambers with
2 Administrator of Courts,
the Administrator the Courts, Judge Judge Tolentino's chamber chamber staff, and then-Attorney staff, and then-Attomey Moylan's 3 4 transition chairperson, chairperson,Mr.
Mr.Wilfred
Wilfred Aflague. Id AccordingtotoJudge Id. According JudgeTolentino, Tolentino,and
andundisputed
undisputed
4 the OAG, by the OAG, then-Attomey then-Attorney Moylan
Moylan"assured
"assured [Judge
[Judge Tolentino]
Tolentino] and
and the
the other
other members
members in
5
6 attendance thathe attendance that heperceived perceivedno
noconflict
conflict in his election
election as
as Attorney
Attorney General
General and
and the prosecution
7 of of criminal casesbefore criminal cases before [Judge [JudgeTolentino's
Tolentino'sCourt]."
Court]."Id.
Id Accordingly, since AG Moylan since AG Moylan took
8 office officein inJanuary
January 2023, JudgeTolentino 2023, Judge Tolentino has presided over has presided over a myriad myriad of
of criminal cases all without
9 statements ofobjection statements of objectionfrom fromthe tAG',1, until
theOAG now. Only until now. Only recently
recently has the OAG
has the OAG begun to file begun to
10 statements objections2 and only of objection
statements of only recently has Judge JudgeTolentino
Tolentino been disqualified because because of his
11 11 relationshipwith relationship withAG AG Moylan.
12 12 B. Recent
Recent Decisions
Decisions Regarding Judge Tolentino's Tolentino's Disqualification 13 13 The first ever
ever disqualification
disqualification of
ofJudge
Judge Tolentino
Tolentino (based
(based on
on his
his relationship with
14 14 AG Moylan) AG Moylan) did did not
not arise
arise out
out of
ofan
an objection from the
objection from the OAG,
OAG, but
but out
out of
ofan
an objection
objection
15 15 from from aa Defendant.
Defendant. On
On April
April5,5,2024,
2024,for
forthe
thefirst time,
first a 001111
time, found that
a court found that "a
"a reasonable
16 16
17 person could question whether Judge JudgeTolentino
Tolentino could be impartial in a case proceeding 17
18 18 at the the direction directionof
of [AG]
[AG] Moylan"
Moylan"due
duetotothe
thefact
factthat
that Judge
Judge Tolentino is stepfatherto to AG
AG
19 19 Moylan's Moylan's children.
children. People of
ofGuam v. Nakita
Guam v. Nikita T Aguon,
Aguon, CM0145-21
CM0145-21 at
at 88 (Super.
(Super. Ct.
20 Guam. April 5, Guam. 5, 2024).
2024). The
The Honorable
Honorable Joseph
Joseph N. Camacho,
Camacho, sewing
serving as
as Judge
Judge Pro
21 Tempore, issued the Decision issued the Decision and
and Order
Orderafter
afterNakita
Nikita T. Aguon,
Aguon, the
the Defendant
Defendant in
in the
the
22
23
24 see Answer 11 See Answerto to Statement Statement ofof Obj.
Obj. atat 66 (Jul. 29, 2024)
(Jul. 29, citing People 2024) citing v. Balatico, People v. Balatico, Crim.
Crim. Case No. CM0188-24;
Case No. CM0188-24; People People
25 v. Rosal, Crim. Case No. CF0270-24, and People v. Rik at, Crum. Case No. CF0423-24 and Shane v. Rosal, Crim. Case No. CF0270-24, and People v. Rikat, Crim. Case No. CF0423-24 and Shane Tenorio Healy, Tenorio Healy, "Akoma trial: "Akoma trial: Judge Judge denies
denies admission
admission of of AG evidence", Marianas AG evidence", Variety, November Marianas Variety, 23, 2023, November 23, 2023, Akoma trial: Judge Akoma trial: Judge
26 denies admission of denies admission of AG evidence II News AG evidence News I Marianas Variety News Marianas Variety News & & Views (mvarietv.com).
Views (mvariety.com).
SeePeople 22 See Peopleof ofGuam Guam v.v. Richard
Richard Y.y. Yabnez,
Yabnez, et. al, CF0447-23 et. al, CF0447-23 at at 5-6 5-6 (Super.
(Super. Ct.
Ct. Guam. June 12,
Guam. June 12, 2024).
2024).
27 Decision Decision and Order
Case No. No. CM0211-24, People v. Joel Joel T. Laxamana La:xamana
Page 3 of 14
1 case, argued case, during a hearing argued during hearing on March March 1,
1, 2024,
2024, that
that "there
"there had
had been
been an
an undisclosed
2 2 familial relationship betweenJudge relationship between JudgeTolentino Tolentinoand
andDouglas
DouglasMoylan
Moylan..." Id at
... " Id. at 4-5.
3 Then, on May 1,
1, 2024, for the first time during during AG Moylan'stenure
AG Moylan's tenure as Attorney 4 General, the General, the OAG filed aaStatement OAG filed Statement of ofObjection
Objection against
against Judge
Judge Tolentino
Tolentino in
in aa
5 government corruption case, case,based
basedon
onJudge
JudgeTolentino's
Tolentino'srelationship
relationshipwith
withAG
AGMoylan's
Moylan's
6 7 See People children. See People of of Guam v.
v. Richard
Richard Y Ybanez, et.
K Ybanez, et. al,
al, CF0447-23
CF0447-23 at
at 5-6 (Super. Ct.
5-6 (Super.
7 8 8 Guam. June Guam. June 12, 12, 2024).
2024). The objection took place place several
several days
days after
after Judge
Judge Tolentino
9 9 disqualified the OAG disqualified the OAG itself over over aa conflict
conflict of
ofinterest
interest in
in the
the same case.Id.
same case. Id at 5. The
10 Statement of Statement of Objection Objection cited
cited the
the precedent
precedent set by
by Aguon
Aguon aa few weeks
weeks earlier. Id at
earlier. Id. at 6.
6.
11 11 Ultimately, the Ultimately, the Honorable Maria Maria T.
T.Cenzon
Cenzondenied
deniedthe
the Statement
Statement of
ofObjection
Objectionon
on June
June
12 12 12, 12, 2024, holding that 2024, holding that Judge JudgeTolentino
Tolentinowas
wasnot
notdisqualified
disqualifiedunder
under77GCA
GCA §§ 6105(a)
6105(a) or
or
13 13 (b), (b), and and that even if
that even if he
he was,
was, the
the OAG's
OAG's Objection
Objection was
was untimely under 77 GCA untimely under GCA §§ 6107 6107
14 14 and constituted constitutedaawaiver.
waiver.Id.
Id at
at 23.
15 15 ConcLuTently, onMay Concurrently, on May 21,
21, 2024,
2024, a Defendant
Defendant in another case, similar another case, similar to the the
16 16 17 17 Defendant in Aguon, filed an Defendant an Amended Amended Objection
Objection on
on Judge
Judge Tolentino
Tolentino as
as well. See
See
18 18 People of ofGuam
Guam v. Carina Jamel
v. Corina Jamel Taitingfong, Taitingfong, Er al. ("Taitingfong''), et al. ("Taitingfong"), CF0024-24 CF0024-24 at
at 4
4
19 19 (Super.
(Super. Ct. Guam.
Guam. June 4, 2024).
June 4, 2024). The Honorable Elyse Elyze M.
M. Iriarte,
Iriarte, sitting
sitting as
as aa recusal
recusal
20 20 Judge, issued Judge, issuedaa Decision Decision and
and Order
Order finding
finding for
for the
the Defendant that "[b
Defendant that "[b]ecause of aa ]ecause of
21 . . . . u reasonable perception that reasonable perception that Judge Judge Tolentino
Tolentlno continues
continues a co-parental
co-parental connection
connection wlth
with
22 Attorney Attorney General General Moylan despite
despite the
the maturation
maturation of their
their mutual
mutual children, he is
children, he is
23 disqualified, and such disqualified, and such disqualification disqualificationhas
hasnot
notbeen
beenwaived
waived nor
nor can
can it be
be cured
cured
24 25 retroactively through anethical through an ethicalwall."
wall." Id
Id at
at 8.
25
26
27 Decision Decision and
and Order
Case No. CM0211-24,People CM021 l-24, People v.
v. Joel TT.Laxamana
Laxamana
Page 4 of14
1 Finally, Finally, on July
July 18, 2024, (a
18, 2024, (a day
day before
before the
the OAG
OAG filed
filed their
their Statement
Statement of
2 2 Objection Objection in in this case 3 the
this cases) the Guam
Guam Supreme
Supreme Court issued an Opinion inSan San Agustin v.
3 .
Superior Court, finding that that since Judge
JudgeTolentino
Tolentino had
had previously
previously disqualified himself 4 from from the case, based on onhis
hisclose
close relationship
relationship with the Defendants, that thatthe
theCourt
Court"lacked
"lacked
5 to act
jurisdiction to act while while the
the judge
judge is
is disqualified."
disqualified."San
San Augustin, 2024 Guam
Guam 22 at ,r 19.
at 1]
6 7 The Guam Supreme Supreme Court
Court explained
explained that
thatthey
theywere
were using
usingtheir
theirsupervisory
supervisory authority
authority"to
"to
7
8 clarify clarify that that a disqualified
disqualified judge
judge should
should not be appointed as as aarecusal
recusaljudge."
judge."Id.
Id at ,r 36.
at ii
9 9 In In the wake of ofthese
these recent
recent decisions,
decisions, this
this Court
Court now
nowtakes
takes up
up the same issue
issue of
of whether
10 10 Judge Tolentino Judge Tolentino should be be disqualified
disqualified based
basedhis
hisrelationship
relationshipwith
withAG
AG Moylan.
Moylan.
11 11 DISCUSSION
12 12
7
7 GCA
GCA §§6105
6105 provides
provides the
the substantive
substantive grounds for disqualification grounds for disqualification of ofaa Judge
Judge in
in Guam.
Guam.
13 13 14 7 7 GCA GCA §§ 6105(a)
6105(a) states in full:
states in full:
14
15 15 Any Any Judge shall disqualify himself Judge shall himself or or herself
herselfin
in any
any proceeding in in which which his or
her impartiality might reasonably impartiality might reasonablybe be questioned, questioned,but butif,
if, following
following complete
complete
16 16 disclosure to all parties in the the proceeding
proceeding of
of the reasons
reasonsfor
for disqualification,
disqualification, all
parties agree to having the Judge continue to Judge continue to sit in the proceedings, he or she she
17 17 need not disqualify
disqualify himself or herself.
18 18 See See 77 GCA
GCA §§ 6105(a).
6105(a).
19 19 The Supreme Supreme Court of Guam, Guam, in interpreting this section, explained that that "what
"what matters
matters is
is 'the
20 appearance of of bias," not 'actual
bias,' not 'actual bias."'
bias."' Dizon v.
v. Superior
Superior Court, 1998
1998 Guam ,r 10 (emphasis Guam 33 1110
21 added). "[N]o actual added). "[N]o actualshowing showingofofbias
biasisisnecessary
necessary for
forrecusal
recusal to
to lie." ,r 10.Instead, lie."IdId.1110. Instead, the the Court
22 must focus on "whether must focus "whether aa reasonable person would have a reasonable basis basis for
for questioning the
23
24 Judge's impartiality, not whether the Judge Judge isis impartial."
impartial."People
People v.
v. Tennessean,
Tennessean, 2010 Guam 12
24
25 25 ,r 33 1] 33 citing citing United
United States v.v. Cherry, th Cir.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003).
26 3 3 Statement of Obj. 7 GCA § 6107 & Mot. to Disqualify. (Jul. 19, 2024).
Statement of Obj. 7 GCA § 6107 & Mot. to Disqualify. (Jul. 19, 2024).
27 Decision Decision andand Order
Case No.
No. CM0211-24, Peoplev. v. Joel T. Laxamana Laxamana
Page 5 of 14
In Guam, a Judge is mandated to disclose any facts facts which
which disqualify them
them under Section
2 6105, if 6105, such grounds if such grounds exist.
exist. 77 GCA
GCA §§ 6106.
6106. When such grounds
When such grounds exist
exist and
and aa Judge
Judge fails to declare
fails to declare
3 4 them as required, them as any party required, any party may
may file
file aa statement
statementof
ofobi sectionunder
objection under 77 GCA
GCA §§ 6107.
6107. The
The Supreme
Supreme
4 Court of Guam Court of Guam has has described
described the procedure prescribed the procedure by 77 GCA prescribed by GCA §§ 6107 as follows:
6107 as follows:
5
6 Pursuant to 7 GCA 6107, if a judge judge does not recuse himself, then then a party may, 'at the earliest practicable opportunity,' 'file ... a written statement objecting to 7 the ... Judge.'
udge' TThe
he wr it t en sstatement written ta must 's'set[[ ] for forth tthe fa ct or
fact or fa ct
facts
constituting the ground of of the disqualification disqualification ofof such ... Judge,' and must be 8 sewed served on
on the
the Judge.
Judge. Within
Within'ten 'ten (1
(1 0)
0) days
days after
after the service ... or ... filing of of any
9 statement, whichever
whichever isis later
later in time,' a Judge may file a 'written answer,' which which must be 'verified in the manner manner prescribed
prescribed for
for the verification ofof pleadings.' If 10 the Judge opposes hishis own own disqualification,
disqualification, then
then 'the
'the question
question of
of the ... Judge's
the... Judge's
disqualification shall
shall be
be heard
heardandanddetermined
determinedby by some
some other
otherJudge.'
Judge'
11 11 See Van Dox See Van Dex v.
v. Superior Ct., 2008
2008 Guam i! 17 (internal Guam 77 1117 (internal citations citations omitted).
omitted).
12 12 In the same case, the Guam Supreme Supreme Court
Court made
made clear
clear that
that "with
"with respect
respect to the statutory
13 13
14 14 provision ovis ion requiring equ ir ing that
ha t dis qu a lif ic a t ionbe disqualification b e urged r ged aat t he
the ' ea'earliest
r lies t p rpracticable
a c t ic a b le
15 15 opportunity,'the theintention
intention'is'isclear
clearthat
thatfailure
failure to
to comply
comply with
with the
the provision
provision constitutes
constitutes
16 16 Id 1[,r 40 citing Caminetti a waiver."' Id inefti v.v. Pac.
Pay. Mut.
Mai. Ins.
Ins. CO. of Cal., 139
139 P.2d 930, 933
933
17 17 (Cal. 1943). Therefore, (Cal. 1943). Therefore, the the Court
Court must
must first
first determine
determine whether
whether the
the OAG waived their
18 18 objection under 77 GCA objection under GCA §§ 6107, 6107, and
and then
then determine
determine whether
whether there
there is
is an
an appearance
appearance of
of
19 19 bias under under 77 GCA
GCA § 6105.
20 Did the A. Did the OAG OAG Fail
Fail toto File
File atatthe
the'Earliest
'Earliest Practicable
Practicable Opportunity,'
Opportunity,' and
21 Statement of
Therefore Waive Their Statement of Objection Under Under 7 GCA 6107?
22 The Court answers this question in the affirmative. In Guam, in order to to comply
comply
23 wit withh 77 GC GCAA §§6107,
6107, disqua lifica ion must disqualification must be
be ur ged aatt t he
urged the "ea r liest practicable "earliest
24 opportunity." See Van Van Dex
Dax v.v. Superior
Superior Cr.,
Ct., 2008 Guam ,r 17
Guam 77 1] 17 ((emphasis
emphasis added). The
25 26 Guam Supreme Supreme Court
Court takes this language language from aa California California case
case and notes that an
26
27 Decision and Decision and Order
Case No. CM0211-24, People v.
l-24, People v. Joel T. Laxamana Laxamana
Page 66 of 14 Page 14 1 "obi waived where party failed to request disqualification until three months was waived
action was
"objection
2 2 party was after the party after of the aware of
was aware the disqualifying facts ... "IdId.
disqualyj/ingfacts." 1] ,r4545citing at at Caminetti citingCam ine v. v.
3 Mai. Ins.
Pac. Mut. Co.of Ins. Co. Cal., 139
offal., P.2d 930, 933 (Cal.1943) (emphasis added).
139 P.2d The Guam added). The
4 Supreme Court also notes that a "statement may be untimely if a party waits until the notes that
5 5 eve of trial toto request of trial disqualification based on information request disqualification made known information made months known months
6 7 earlier." Id.
earlier." Id at ,r 46 at 1] 46 citing Panah, 107 v. Pariah,
citing People v. (emphasis (Cal.2005) (emphasis
824 (Ca1.2005)
790, 824
P.3d 790,
107 P.3d
7 8 added). before us, added). In the case before us, AG Moylan knew about the allegedly disqualifying facts AG Moylan
8
9 almost two decades decades in advance, AG Moylan's because AG
advance, because ex-wife Dorris Moylan's ex-wife remarried Judge Dorris remarried
10 Tolentino in in 2005. Answer
Answer to
to Statement
Statement of
of Obj.
Obj. at
at 33 (Jul.
(Jul. 29, 2024).
11 Further, AG Further, "earliest possible opportunity"
the "earliest
that the
recognizedthat
himselfrecognized
Moylan himself AG Moylan
12 12 . . . .
address the to address allegedly disqualifying the allegedly almost two years ago, in December facts was almost
disqualifying facts December 2022, 13 13 before taking office, before taking office, because because that's then-Attorney Moylan chose to meet with that's when then-Attomey
14 14 Judge Tolentino and waive waive the conflict. Id.
the conflict. Id at 2.
2. AG
AG Moylan dispute this4, not dispute
does not
Moylan does this, and 15 15 16 Courts. Id.
the meeting took place in front of witnesses, including the Administrator of Courts. Id 16 17 It is correct correct that the newly elected elected Attorney General sought to resolve the conflict in 17
18 18 December 2022 before taking office, because there are are massive
massive administrative concerns
19 19 with with disqualifying disqualifying one
one of the Guam Superior Court's ofthe limited Judges Court's limited from every criminal Judges from
20 20 the island, case on the OAG as well.
theOAG
by the
chargedby
case charged
civil case
anycivil
andany
island, and This is well. This why the
is why the Guam
21 Court has cautioned that a Judge should not "distance Supreme Court themselves from "distance themselves cases from cases
22 at the slightest suggestion" because "[a] Judge's Judge's duty
duty to hear aa case and keep the wheels to hear
23 of justice rotating rotating is just herself if a himself or herself
just as strong as his or her duty to remove himself 24 25 v. Guitierrez, reasonable person would not believe in his or her impartiality." Ada v. Guitierrez, 2000 25
26 4 4 Min. Entry at 9:48:01 AM Min. AM (Mot. Hearing, Hearing, Aug.
Aug. 15, 2024).
2024).
27 Decision Decision and
and Order
CaseNo.
No. CM0211-24,
CM0211-24,People v. Joel People v. Joel T. Laxamana Laxamana
Page Page 77 of
of14
·1 Guam 22 22 at ,i,i 2-13.
at 1111 12-13. Withallallofofthis With thisininmind, mind,the
theCourt
Courtwill
willnevertheless
nevertheless address the
2 OAG's OAG's timeliness timeliness arguments.
3 AGMoylan's
a. AG Moylan'sWaiver
WaiverStill
StillApplies,
Applies, Even
Even Though
Though the
the OAG
OAG Filed this
4 Case in 2024 The OAG
OAG maintains
maintains that
that they
they filed
filed their
their Magistrate
Magistrate Complaint for this case in 5
6 July 2024, and that it is therefore timely. People's Resp. to J. Tolentino's Answer to 6
7 Statement of Statement of Obj.
Obj. 77 GCA
GCA §§ 6107
6107 &
& Mot.
Mot. to
to Disqualify
Disqualify at
at 3,
3, (Aug.
(Aug. 8,
8, 2024). In aa more
2024). In more
8 typical situation, typical situation, the the Guam
Guam Supreme
Supreme Court has
has held that "a statement of of objection is
99 normally timely if if it is submitted prior to to any
any hearing
hearing before
before the
the challenged
challenged judge
judge in the
10 See Van Dex matter." See matter." Dax v.
v. Superior
Superior Co.,
Ct., 2008
2008 Guam 77 1,i1 46 citing Hollingsworth, 236 236
11 11 CaLRptr. at 195-96 Cal.Rptr. at 195-96 (emphasis (emphasis added). However, this is not a "normal"
"normal" situation. This is 12 12 the Attorney General of of Guam. If
If we
we disqualify
disqualify Judge
Judge Tolentino
Tolentino from
from hearing
hearing cases
cases
13 13 14 related ela t ed too AG M oyla we Moylan, we will
will dis qu a lify JJudge disqualify u TTolentino olent ino from
om Gu a
Guam's entire
14 prosecution mechanism.
mechanism.
15 15
16 16 When the Guam Guam Supreme
Supreme Court
Court laid
laid out
out the
the normal
normal timeliness
timeliness standard,
standard, stated
stated
17 above, the Court cited Hollingsworth, llingsworth, but that California case involves involves a situation where where
18 18 a Defendant could not possibly predict that the Judge in question would hear the case 19 19 'ahead of time.
'ahead of time. See Hollingsworth, 236 Cal.Rptr. at See Hollingsworth, at 197 197 ("We
("We End
find ititunreasonable,
unreasonable, as
as
20 well as impracticable, well as impracticable, to to require
require presentation of
of aa statement of
of disqualification until it disqualification until it is 21 known which which judge
judge will
will hear
hear the
the case.").
case."). Unlike the Defendant in Hollingsworth, Hollingsworth, AG
AG
22 Moylan knew that that Judge Tolentino
Tolentino would hear AG
AG Moylan's
Moylan's cases,
cases, because
because Judge
Judge
23
24 Tolentino is a Guam Superior Court Judge and AG Moylan is the Attorney General of of
24
25 Guam.
26
27 Decision Decision and
and Order
Case No. Laxamana No. CM0211-24, People v. Joel T. Laxamana
14
Page 8 of 14
11 well ahead knew well
AG Moylan knew of time that Judge Tolentino would be hearing AG ahead of
2 asked Judge Tolentino for a meeting himselfasked
Moylan himself AG Moylan
why AG is why
which is
cases, which
Moylan's cases, Moylan's meeting 3 to address the countless, potential conflicts. Answer to Statement of Obj.
Statement of at 2 (Jul. 29, Obj. at
4 Typically, the
2024). Typically, timeliness requirement should be "liberally construed" to promote the timeliness
5 See Van Dox
justice. See v. Superior Cr., Dox v. 2008 Guam Ct., 2008 ,r 4545citing Guam 77 1] Supple Mains. & Supple
Eagle Maint.
citingEagle
6 Co. v. Super.
Super. Ct., 16 Cal.Rptr. 745, Ct., 16 747 (Dist.Ct.App.1961).
745, 747 However, again, (Dist.Ct.App.1961). However, when the again, when
7 7
Guam Supreme Court emphasizes Supreme Court this liberal emphasizes this construction, they cite liberal construction, California case cite aa California
8
9 where, "it would place an undue hardship upon a litigant or his counsel to compel him
10 to know before the first first scheduled
scheduled trial setting, what what judge would assigned to try his would be assigned
11 11 particular department case in a particular of the department of the court the trial where the
court where date has trial date been set
has been set over."
over." Id.
Id
12 12 (emphasis added).
13 13 The Guam SSupreme he Gua upr CCourt's ma l ststandard normal
our t 's nor ly aapplies clearly
a nda clea typical pplies in aa t ypica
14 14 situation, case before the case
but the
situation, but us is not typical:
before us General. AG typical: it involves the Attorney General.
15 15 Moylan clearly be assigned would be
clearly knew "what judge would to try assigned to his cases,"
try his because the cases," because
16 16
17 inevitably try Attorney General represents the People, and the People inevitably of try cases in front of
17
18 18 every Superior Court Court Judge,
Judge, including Judge Tolentino.
including Judge This isis why Tolentino. This AG Moylan met why AG
19 with Judge Tolentino back in December December 2022 to specifically address Judge Tolentino's address Judge Tolentino's
20 criminal dispute that he Moylan does not dispute AG Moylan
Further, AG
office. Further,
taking office.
before taking
docket, before
criminal docket, 21 purposely waived any potential conflicts during the meeting. Min. 9:48:01 AM Min. Entry at 9:48:01
22 (Mot. Hearing, Aug. (Mot. Hearing, Aug. 15, 15, 2024). This waiver
2024). This waiver stood
stood for over aa year
for over year and
and aa hal£5 The AG
half 5 The
23
24 5 5 see Answer See Answer to to Statement Statement of
of Obj.
Obj. at
at 66 (Jul.
(Jul. 29, 2024) citing People v. Balatico, Bolatico, Crim. Case No. CM0188-24;
Case No. CM0188-24; People 25 v. Rosal, Rosal, Crim. Case No. CF0270-24, Case No. CF0270-24, and People v. Rikat, Rikot, Crim. Case No. CF0423-24 Case No. CF0423-24and
and Shane
ShaneTenorio
Tenorio Healy,
Healy,
"Akoma trial:
trial: Judge
Judge denies admission of AG AG evidence", evidence", Marianas
Marianas Variety,
Variety, November
November 23,
23, 2023, Akoma trial: Judge 26 26 denies admission admission of AG evidence I News I Marianas Varietv AG evidence Variety News News & Views (mvarietv.com).
27 Decision and Order Decision and
No. CM0211-24, People v.
Case No. v. Joel Joel T.
T Laxamana
Page 9 of of 14
1 cannot rescind the cannot rescind the waiver now.
now. Countless
Countless criminal
criminal cases
cases could
could be
be overturned,
overturned, an
an
2 2 outcome that that would
would not
not "promote
"promote justice." Van Dex justice." Van Dox v.
v. Superior Cr.,
Ct., 2008 Guam
Guam 77,r
1]45
3 Eagle Mains.
citing Eagle Maint. & SSupple u p p CCo. v. Super.
o v. Super. Cr.
Ct.,, 16
16 Cal.Rptr.
Cal.Rptr. 745,
745, 747
747
4 (Dist.Ct.App.1961 (Dist.Ct.App.1961).
5 b. San
San Augustin
Augustin Does Not
Not Justify OAG's
OAG's Statement
Statement of Objection
6 The OAG
OAG claims
claims that
that the San
San Augustin
Augustin opinion
opinion provides
provides additional
additional grounds
grounds on
7
8 which to require disqualification, "namely "namely the
the Supreme
Supreme Court's
Court's explanation
explanation and use of
and use of
8
9 9 its supervisory supervisory authority authority over the Superior Court of Guam's Guam's assignment
assignment of matters
matters to
10 disqualified disqualified judges." People's People's Resp. to J.
J.Tolentino's
Tolentino's Answer
Answer to
to Statement
Statementof
ofObj. 7 GCA
GCA
11 11 §§ 6107 & Mot.
6107 & Mot. to to Disqualify
Disqualify at
at 3
3 (Aug. 8, 2024).
(Aug. 8, 2024). The
The OAG
OAG also
also notes
notes that they filed
that they filed
12 . . . .
their Statement their Statement of ofObi
Objection
echelonthe
theday
dayafter
afterthe
theGuam
GuamSupreme
Supreme Court IssuedSan Augustin.
Court issued
13 13 However,the Id. However, the Guam GuamSupreme
Supreme Court's
Court'ssupervisory
supervisoryauthority
authority was
was not
not invented
invented in
in July
July
14 14 2024, 2024; it has been in use use for
for decades.See
decades. See People v. Angoco, 2006 Guam 18 ,r v. Angoco, 1129 (holding 29 (holding
15 15 16 that the that the Guam Supreme Court's Guam Supreme Court's supervisory supervisory power is intended intended to "address
"address extreme
extreme
16 17 cases, suchas cases, such aswhen whenthe
theSuperior
SuperiorCourt
Courtisisacting
actingin
inexcess
excessof
of its
its powers.").
Powers."). Further,
Further, in
17
18 18 San San Augustin, the Guam Supreme Supreme Court
Court addressed
addressed"(
"(1) the manner in which judges are
19 19 appointed to review appointed to review the denial denial of
of disqualification
disqualification requests, and(2)
requests, and (2) the
the rights
rights of the
the
20 20 parties to briefing parties to briefing and and hearing
hearingonce
oncethe
thereview
reviewisisassigned
assignedtotoaareviewing
reviewingjudge
judge..."San
... " San
21 . 1 . . .
Augustin, Augustzn, 2024 ,r 34.
2024 Guam 2 1] 34.This Involves judges reviewing Thls involves reviewing dzsqualwcation disqualification requests, requests,
22 the disqualification
not the disqualification itself. San Augustin itself. As such, San Augustin does e s not aapply
l y tto t the
h
23 disqualification disqualification issue issue before us.
24
25
26
27 Decision Decision and
and Order People v.
Case No. CM0211-24, People Laxamana v. Joel T Laxamana
10 of14
Page 10
11 Aguon is Not Binding c. Aguon Binding Precedent, Precedent, But
But Even
Even If
If It Was, ItItEstablishes.
It Was, Establishes.
Precedent for aa Defendant, Precedent for Defendant,Not Not the
theOAG
OAG
2 Although San Augustin is not relevant to the case, the same cannot be said said for
3 Aguon, the first first instance
instance where a trial court disqualified disqualified Judge
Judge Tolentino because "a 4 5 reasonable person could question whether whether Judge Tolentino
Tolentino could
could be
be impartial
impartial in a case
5 6 6 proceeding direction of [AG] Moylan." People proceeding at the direction People of of Guam
Guam v.v. Nakita
Nikita TT Aguon,
Aguon,
77 CM0145-21 at CM0145-21 at 8 (Super.
(Super. Ct.
Ct. Guam.
Guam. April 5,
5, 2024).
2024). This decision
decision is not
not binding,
binding,
8 however, as it was not issued by the Guam Supreme Court.
Court. Further, the
the objection in the
99 case arose because the Defendant filed a Motion Motion for of Prosecutor (not for Disqualification of
10 10 a Statement of Objection under Statement of under 77 GCA §§6105)
6105)and
andthen
thenthe
the Defendant
Defendant later
later argued
argued
11 11 during a hearing during hearing on March 1, 2024, March 1, 2024, that
that "there
"there had
had been
been an
an undisclosed
undisclosed familial
familial
12 12 relationship between Moylan..." Id. atat 4-5.
between Judge Tolentino and Douglas Moylan 4-5. Therefore, the 13 13 14 holding in Aguon does not apply to objections by the OAG, but instead to objections by 14 15 15 Defendant. Even if a Defendant. if Aguon was binding binding precedent,
precedent, AG Moylan cannot make the AG Moylan the
16 16 preposterous preposterous claim claim that
that there
there has
has been an "undisclosed familial relationship" between
17 Judge Tolentino and himself. AG Moylan Moylan has
has known
known about
about this
this relationship for twenty
18 18 years years and, and, unlike Defendant in Aguon, AG Moylan unlike the Defendant Moylan waived waived the
the relationship
relationship in
19 19 December December 2022.
2022.
20 d. AG
AGMoylan's
Moylan'sWaiver
WaiverisisofofParticular
ParticularConcern,
Concern, Given that the
the OAG
OAG
21 May Maybe
be Attempting
Attempting to
to Manipulate
Manipulatethe the Criminal CriminalJustice
Justice System
System
22 Finally, the Finally, the fact
fact that
that AG
AG Moylan
Moylan waived the conflict and and then seems to have
23 23 rescinded that waiver is of of particular
pafficular concern,
concern, because
because the
the Guam
Guam Supreme Court makes
24 it clear that it clear that 77 GCA GCA §§ 6105
6105 "is
"is not
not intended
intended to 'bestow veto
to 'bestow power over veto power judges or over judges or to
to be
be
25 2.5 used as as aajudge
judgeshopping
shoppingdevice."'
device."'San v. Superior Court San Agustin v. Court of ofGuam,
Guam, 2024 Guam
26 ,i 24 2 1] 24 (quoting Camaddu, 2015 Guam (quoting People v. Camaddu, Guam 22 1],i 80 Nichols v.
80 (quoting Nichole v. Alley, 71 27 Decision Decision and Order
Case No. CM0211-24, People v. Joel T. Laxamana Laxamana
Page 11 of
of 14
1 (10 th Cir.
F.3d 347, 351 (10th Cir. 1995) (per curium), curiam); cf
cf Ada, 2000 Guam 22 ,r 21 22 1] 21 ("We
("We do not
22 want to open a Pandora's box in which parties begin drawing a judge's judge's family tree each
3 time it seems that a judge judge will
will rule
rule against
against them.").
them."). AG
AG Moylan
Moylan did not question his own 4 waiver with Judge Tolentino, until a year-and-a-half into into AG
AG Moylan's tenure,
tenure, when
5 Judge Tolentino issued a major decision with which AG Moylan seriously disagreed.
6 In that case, in the first first decision
decision to
to ever address a Statement of Objection by the 7
8 Moylan's relationship
OAG regarding AG Moylan's relationship with with Judge
Judge Tolentino,
Tolentino, the Honorable
Honorable Maria
9 T. Cenzon notes that the the timing
timing of the
the OAG's Objection is "suspect because it comes on OAG's Objection
10 10 the heels of of Judge Tolentino's
Tolentino's Decision
Decision and
and Order
Order issued
issued on
on April
April 25,
25, 2024,
2024, granting
granting
11 11 Defendant Sablan's Defendant Sablan's Motion Motion to Disqualify the
to Disqualify Office of the the Office the Attorney Attorney General
General and
and
12 12 mandating that a special mandating special prosecutor prosecutor be appointed."
appointed." People
People of Guam v. Richard Richard Y
13 13 Yabnez, et. Yabnez, et. al, al, CF0447-23
CF0447-23 at
at 21
21 (Super.
(Super. Ct.
Ct. Guam.
Guam. June
June 12,
12, 2024).
2024). Since
Since then,
then, and only
14 14 a few weeks after after filing the Statement of Objection in this case, AG Moylan published 15 15 an op op-ed in Pacific ed in Daily News, confir Pacyic Daily confirming ming that
t ha t he
he seeks
eeks to over
overturn
r n his own
his own
16 16
17 17 disqualification by disqualification by Judge Judge Tolentino
Tolentino in the very case noted by the Honorable Honorable Maria
Maria T.
18 18 Cenzon:
19 19 We are concerned concerned that
that the Guam trial courts are engaging in Judicial Activism and re-writing
re-writing Guam law that that expressly
expressly requires that the Guam requires that Guam Attorney Attorney
20 General be the public prosecutor and to provide legal services to to government officials who are only stewards ofof the People, and are not the People of Guam, 21 by using "ethics rules" to disqualify this elected AG.
22 I believe
believe itit is
is wrong
wrong and
and we will
will seek
seek to have itit corrected either either in this court or
23 higher courts.66 higher courts.
24
25 6 6 Attorney General Douglas Attorney Douglas Moylan, Moylan, "LETTER: Courtdecision "LETTER: Court decisioninterferes interfereswith
with elected
elected AG's
AG's ability
ability to
to fight
fight
corruption", Pacific Daily News, News, June 2, 2024,
2024, LETFER: Courtdecision LETTER: Court decisioninterferes interfereswith
with elected
elected AG's
AG's ability
ability to
to fight
fight
26 corruption II Opinion Opinion II guampdn.com.
guampdn.com.
27 Decision Decision and
and Order
Order
Case No. CM0211-24, People v.
CM02 l l-24, People v. Joel T Laxamana La:xamana
12 of
Page 12 14
of 14
The Court cannot discern if AG Moylan started disqualifying Judge Tolentino, because, 2 Moylan writes,
as AG Moylan writes, he he isis "concerned
"concerned that
that the
the Guam
Guam trial
trial courts
courts are
are engaging
engaging in
in Judicial
Judicial
3 4 Activism" and and he
he wishes
wishes to
to find
find aabetter
better outcome
outcome with
with different
different Judge.
Judge. These
These circumstances
circumstances
4 surrounding AG Moylan's Moylan's sudden
sudden objection
objection against
against Judge
Judge Tolentino,
Tolentino, after
after a year-and-a-half
year-and-a-half of
5
66 not objecting, objecting, inform our decision about the waiver, about the because the Court should seek to avoid waiver, because
7 "outcomes which "outcomes which lead lead to the
the manipulation
manipulation of the
the criminal
criminal justice
justice system."
system." See People
People v.
8 Camaddu, 2015 Guam 22'll,r 80 (stating that if a trial Camaddu, trial court court recused
reuSed itself
itself "every time
time itit receives
99 unsolicited material unsolicited material uncomplimentary uncomplimentaryto
to aa defendant
defendant prior
prior to
to trial or sentencing [it] would create 10 . . . . . . . . _ _ ,, an intolerable situation sltuatlon which
which could
could lead
lead to
to aa manipulation
manipulation of
of the
the criminal
cnmlnal justice
justice system.").
system. ). For
11 11 this reason, and all of the reasons reasons above,
above, the
the OAG's
OAG's waiver
waiver should
should be treated as a failure to file tile
12 12 at the "earliest at the "earliest practicable opportunity" under practicable opportunity" under 77 GCA GCA §§ 6107.
6107.
13 13 B. Does Does Judge
Judge Tolentino Have
Have aa Disqualifying
Disqualifying Relationship Relationship that
that Creates
Creates the
14 14 'Appearance of Bias'
Bias' Under
Under 7 GCA 6105?
6105?
15 15 The Court declines to answer this question definitively. Given the waiver under
16 16 77 GCA GCA §§ 6107, 6107, it
it is
is not
not necessary
necessary for the Court
for the Court to
to reach the alleged
reach the bias under alleged bias under 77 GCA GCA
17 o 1 . , . 1 6105, because 6105, because the the objection
objection is procedurally defective.
is procedurally defective. However, However, given the
the recent
recent
18 18 revelations in Aguon, Aguon, Defendants are not precluded precluded from
firm raising their objections.
objections. Only
19 19 the OAG is precluded.
20
21
22
23
24
25
26
27 Decision Decision and
and Order
Order
Case No. CM0211-24,
CM02 l 1-24, People
People v. Joel T. Laxamana Laxamana
Page 13
13 of14
CONCLUSION CONCLUSION AND
AND ORDER
2 For the
the above
above reasons,
reasons, the
the Court
Court DENIES the
the OAG's
OAG's Statement
Statement of
of Objection
Objection and
and
3 declines to disqualify disqualify the Honorable
Honorable Alberto E.
E. Tolentino.
Tolentino. The
TheCourt
Courtreturns
returns this
this case
case to the
4
Honorable Alberto E. Honorable Alberto E. Tolentino.
5
6 ORDERED, this SO ORDERED, 21
this_(...
..,.,u. "'j~A»\ _ _ day of_ft_~
__
'Uc; \
"'-_&_c'\_ _ _ _ 2024.
7
8
9
10 -J
HONOR HONO BLE J DHN c. TERLAJE 11 Judge, Superior Ourt of Guam 12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 Decision Decision and
and Order
Case No. CM0211-24,People CM021 l-24, People v.Joel TT. Laxamana Laxamana
Page1414 of14