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
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 14 1 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 14 11 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
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
27 Decision Decision and and Order Case No. CM0211-24,People CM021 l-24, People v. v. Joel TT.Laxamana Laxamana Page 4 of14 14 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 1 1 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.
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
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.
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 11 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
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 1 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
10 -J
HONOR HONO BLE J DHN c. TERLAJE 11 Judge, Superior Ourt of Guam 12
27 Decision Decision and and Order Case No. CM0211-24,People CM021 l-24, People v.Joel TT. Laxamana Laxamana Page1414 of14