FILED .. L.
CLERK OF COURT 1 202~ AUG 20211 AUG2929PM 3: 51 PH 3: Q 2 SUPERIOR COURT<3° SUPEREOR 3 oOFGU/.\M F GUA IN THE SUPERIOR SUPERIOR COURT OF GUAM 4
5 THE PEOPLE OF GUAM, 6 Case No. Case No. CF0466-24 7 vs.
8 FENTARANO FENTARANONATH, NATH, DECISION ECISION AND ORDER (Answer to OAG's OAG's Statement Statement of Objection)
(aka Fenteran Neth}, Neth), 9 DOB: 09/12/1992 10
11 Defendant.
12
13 INT RO INTRODUCTION 14 This matter matter came came before before the the Honorable Honorable John John C.
C. Terlaje Terlaje on onAugust 15 th , 2024, August1511', 2024, for for a 15
16 Motion Motion Hearing Hearing regarding regarding the Office of of the the Attorney Attorney General's General's ("OAG's")"
("OAG's;'f Statement Statement of
17 Objection ("Objection"), in Objection ("Objection"), in which which the the OAG OAG objects objects to to the the Honorable Honorable Alberto E.
E. Tolentino Tolentino
18 ("Judge Tolentino") presiding presiding over over the the above-captioned matter due above-captioned matter due to to his relationship relationship with
19 Attorney General Douglas Attorney General DouglasMoylan Moylan ("AG ("AG Moylan"
Moylan" or or "then-Attomey "then-Attorney Moylan").
Moylan"). Upon Upon 20 consideration of the arguments and applicable arguments and applicable Guam Guam law, law, the Court hereby hereby DENIES DENIES OAG's OAG's 21 Objection. As As such, such, Judge Judge Tolentino may continue continue to preside over this matter.
22 BACKGROUND 23 This This case began on case began on July July 6, 6, 2024, when the Attorney Attorney General General of ofGuam Guamaccused accused Fenterano 24 Nath ("Defendant")
("Defendant") with withPossession Possession of ofaa Schedule Schedule IIIIControlled ControlledSubstance Substance (As 3rd Degree (As aa 3rd 25 Felony). Felony). Magistrate's Magistrate'sCon pl. (Jul.
Compl. (Jul.6,6,2024).
2024).The Thematter matterwas was assigned assigned to Judge Tolentino Tolentino on July 26
27 Decision Decision and and Order Case Case No. CF0466-24, People People v. Fenterano Fenterano Nash Nath Page of14 Page 1 of 14
11
10th , 2024. 10th, 2024, Notice Notice of of J.
J. Assignment 19th , 2024, July 19*h, on July 10, 2024). Then, on Assignment (Jul. 10, OAG filed a the OAG 2024, the 2 S tatement tement of of Objection Objection and nd Motion Disqualify Motion to Disqua olentino based Judge Tolentino lify Judge his aalleged ba sed on his lleged 3
4 relationship with relationship with AG AG Moylan.
Moylan. Statement Statement of of Obj.
Obj. 77 GCA GCA §§ 6107 6107 & & Mot.
Mot to to Disqualify.
Disqualify. (Jul.
(Jul. 19, 19, 4 5 . 2024). Tolentino answered Judge Tolentino 2024). Judge Statement of Objection on July 29, answered the Statement 2024. Answer to 29, 2024.
5
6 Statement of Obj.
Statement of Obj. (Jul.
(Jul. 29, 29, 2024). assignedtotothis then assigned was then matter was 2024). The matter Court in thisCourt the limited in the limited
77 capacity ofRecusal Recusal Judge on on July 30, 2024. Notice of of Assignment ofRecusal Assignment of (Jul. 30, 2024).
J. (Jul.
Recusal J.
8 responded to The OAG responded Judge Tolentino's to Judge answer on Tolentino's answer August 8, on August 2024. People's 8, 2024. Resp. to J.
People's Resp.
99 Tolentino's Answer to Tolentino's Answer to Statement Statement of of Obj.
Obj. 77 GCA GCA §§. 6107 6107 & & Mot.
Mot. to to Disqualify Disqualify (Aug.
(Aug. 8, 8, 2024).
10 Defendant gave Defendant their answer gave their as well answer as well on samedate.
the same onthe Def.'s Resp.
date. Def.'s to Gov't's Resp. to Statementof Gov't's Statement Obj.
ofObj 11 11 (Aug. 8, 2024). took the 2024). The Court then took matter of the matter Judge Tolentino's ofJudge disqualification under Tolentino's disqualification 12 12 advisement.
13 13 A. Attorney Attorney General Relationship with Judge Tolentino Moylan's Relationship General Moylan's 14 14 It is undisputed undisputed that that Judge Judge Tolentino Tolentino is is married Moylan's ex-wife, to AG Moylan's married to Doris L.G.
ex-wife, Doris 15 15 Tolentino ("Doris"), and that Judge Tolentino stepfather to Tolentino is the stepfather AG Moylan's two children, to AG 16 16 17 17 Brandon (born (born 1990)
1990} and Angela (born 1992).
1992). Answer to to Statement Statement of Obj. at 3 (Jul. 29, 2024).
18 AG Moylan Moylan and Doris divorced divorced in 1997, and then, in 2005, Doris in 1997, remarked to Judge Tolentino, Doris remarried
19 day. Id As who remains her husband to this day. October 2022, prior to as October recently as As recently AG Moylan's to AG
20 20 election, Judge from cases involving then-Attorney Moylan in disqualified himself from Judge Tolentino disqualified 21 private practice, because because "Douglas "Douglas Moylan, Esq., is the of my father of the father step-children." Id my step-children." at 24-26, Id at 22 Exs. A-C.
23 A month month later, later, on on November November 8, 8, 2022, 2022, then-Attomey was elected Moylan was then~Attorney Moylan Attorney elected Attorney 24 General of of Guam and became AG Moylan, taking office in January 2023.
AG Moylan, Id at 2. Before being 2023. Id 25 swam sworn in in as as Attorney General, however, then-Attorney Moylan requested a meeting with Judge then-Attomey Moylan 26
27 Decision Decision and and Order Case No.
No. CF0466-24, People People v.
v. Fen terano Nath Fenterano Nate Page 22 of of 14 `
I
1 1 Tolentino in December 2022.
2022. Id. Themeeting Id The meeting took tookplace place in in Judge Judge Tolentino's Tolentino's chambers chambers with 2 the Administrator the Administrator of Courts, Courts, Judge Judge Tolentino's chamber chamber staff, staff, aNd arid then-Attorney then-Attorney Moylan's 3 4 transition chairperson,Mr.
transition chairperson, Mr.Wilfred Wilfred Aflague.
Aflague. Id. According AccordingtotoJudge JudgeTolentino, Tolentino,and andundisputed undisputed 4
5 b OAG, by the OAG, then-Attorney then-Attorney Moylan "assured "assured [Judge Tolentino] and the [Judge Tolentino] the other other members members in
6 attendance that attendance thathe heperceived perceived no conflict in his election as Attorney General no conflict General and and the prosecution
7 of criminal of criminal cases cases before before [Judge [JudgeTolentino's Tolentino"sCourt]." Id Accordingly, Court]."Id. Accordingly, since since AG Moylan took AG Moylan
8 officein office inJanuary January 2023, Judge Judge Tolentino has presided Tolentino has over aa myriad presided over myriad of criminal cases cases all without 9 statements of statements of objection objection from from the the OAG 1 OAG1,, until until now. Only recently now. Only hasthe recently has theOAG OAG begun begun to to file file 10 2 statements of statements of objection obi ection2 and andonly onlyrecently recentlyhas hasJudge JudgeTolentino Tolentino been been disqualified disqualified because because of his 11 11 relationship withAG relationship with AG Moylan.
12 12 B. B. Recent RecentDecisions Decisions Regarding Regarding Judge Judge Tolentino's Tolentino's Diéqualiiication 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 of an an objection objection 15 15 from a Defendant.
Defendant. On April 5, 2024, On April 2024, for for the the first time, a court found that "a reasonable 16 16 t'
person could question whether Judge Judge Tolentino Tolentino could be impartial in a case proceeding 17 17
18 18 at the the direction directionof of [AG]
[AG] Moylan"
Moylan"due duetotothe thefact factthat that Judge Judge Tolentino is stepfathert_o toAG AG
19 Moylan's Moylan's children. of Guam children. People of Guam v.v. Nakita Nikita T Aguon, Aguon, CM0145-21 CM0145-21 at 8 (Super.
(Super. Ct.
20 Guam. April 5, Guam. April 5, 2024).
2024). The The Honorable Honorable Joseph Joseph N. Camacho, Camacho, sewing serving as as Judge Judge Pro 21 Tempore, issued issued the the Decision Decision and and Order Order after after Nakita T; Aguon, Nikita T. Aguon, the the Defendant-in Defendant-in the the 22
23
24 11 See SeeAnswer Answer to to Statement Statement of of Obj. at 6 (Jul. 29, 2024)
(Jul. 29, 2024) citing citing People v.
v. Balatico, Bolatico, Crim. Case No. CM0188-24;
Case No. CM0188-24; People v. Rosal, Rosal, Crim. Case No. CF0270-24, Case No. CF0270-24, and People v. v. Rik at, Crim. Case Rikat, No. CF0423-24 Case No. CF0423-24andandShane ShaneTenorio Tenorio Healy, Healy, 25 "Akoma trial:
trial: Judge denies admission admission of AGAG evidence", evidence", Marianas Variety, November 23, 2023, 2023, Akoma trial: Judge denies admission admission of of AG evidence I News I Marianas Varietv AG evidence Variety News News & Views (mvarietv.com).
(mvariety.com).
26 z2 See SeePeople Peopleof ofGuam Guam v:v;Richard Richard Y.
y. Yabnez, Yabnez, et.et. al, al, CF0447-23 CF0447-23 at 5-6 (Super. Ct. Guam. June 12, Guam. June 12, 2024).
2024).
27 Decision and Decision and Order Case No.
No. CF0466-24, People People v. Fenterano Nath Nate Page 3 of 14 Page 11 case, argued during case, during a hearing hearing on March March 1, 1, 2024, 2024, that that "there "there had had been been an an undisclosed undisclosed
2 2 relationship between familial relationship betweenJudge JudgeTolentino Tolentinoand andDouglas DouglasMoylan ... " Id.
Moylan..." at 4-5.
Id at
3 Then, on May 1, 1, 2024, for the first time during during AG AG Moylan's tenure as Attorney Moylan's tenure 4 General, the OAG filed General, the filed aaStatement Statement of ofObjection Objection against against Judge Tolentino in aa Judge Tolentino 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, Ybanez, Er.
et. al, CF0447-23 CF0447-23 at at 5-6 5-6 (Super.
(Super. Ct.
7
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 disqualified the OAG over aa conflict OAG itself over conflict of ofinterest interest in in the same case.Id.
same case. Id at 5. The
10 Statement of Statement Objection cited of Objection cited the the precedent precedent set set by Aguon aa few weeks by Aguon earlier. Id.
weeks earlier. at 6.
Id at 6.
11 11 Ultimately,the theHonorable HonorableMaria MariaT.T.Cenzon Cenzondenied deniedthe theStatement Statement of ofObjection Objectionon on June June 12 12 12, 12, 2024, holding that that Judge JudgeTolentino Tolentino was was not notdisqualified disqualifiedunder under77GCA GCA §§ 6105(a)
6105(a) or 13 13 (b), (b), and and that even if that even if he was, was, the the OAG's OAG's Objection Objection was was untimely under77 GCA untimely under GCA § 6107 6107 14 14 and constituted constituted aawaiver.
waiver. Id. at at23 23..
15 15 Concurrently, on Concurrently, on May 21, 21, 2024, 2024, aa Defendant Defendant in in another another case, case, similar to the the 16 16
17 17 an Amended Defendant in Aguon, filed an Amended Objection Objection on on Judge Judge Tolentino See Tolentino as well. See
18 18 of Guam v.
People of v. Corina Taitingfong, et Carina Jamel Taitingfong, et al.
al. ("Taitingfong''), at 4 ("Taiting'ong"), CF0024-24 at
19 19 (Super. Ct. Guam.
(Super. Guam. June June 4, 4, 2024).
2024). The Honorable Elyze Elyze M.
M. Iriarte, Iriarte, sitting sitting as as aa recusal recusal
20 20 Judge, issued Judge, issued aa Decision Decision and and Order Order finding finding for the the. Defendant Defendant that that "[b ]ecause of "[b]ecause of aa
21 reasonable perception that reasonable perception that Judge Judge Tolentino Tolentino continues continues a co-parental co-parental connection with 22 Attorney General Attorney General Moylan Moylan despite despite the maturation of their the maturation their mutual mutual children, children, he is he is 23 disqualified, and such disqualified, and such disqualification disqualificationhas hasnot notbeen beenwaived waivednor nor can can itit be be cured cured 24 25 retroactively through an anethical ethicalwall."
wall." Id.
Id at at 8.
25
26
27 Decision and Decision and Order People v.
Case No. CF0466-24, People v. Fen Fenterano terano Nath Nate Page 14 Page 4 of 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 Guam Supreme Court this cases) Court issued issued an an Opinion Opinion in in San Agustin v.
3 finding that since Superior Court, iindingthat since Judge Judge Tolentino had previously disqualified himself 4 from from the the case, basedon case, based onhis hisclose closerelationship relationshipwith with the Defendants, Defendants,that thatthe theCourt Court"lacked "lacked 5 jurisdiction to act while the judge is disqualified." San jurisdiction ,i 19.
San Augustin, 2024 Guam 2 at 11 19.
6 The Guam Supreme Court explained that they Guam Supreme they were were using using their supervisory authority "to 7
8 8 clarify clarify that that a disqualified disqualified judge judge should should not be appointed as asaarecusal recusaljudge."
judge."Id.
Id at ,i 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 Judge Tolentino should be Judge Tolentino 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 groundsfor substantive grounds for disqualification disqualification of of a a Judge inGuam.
Judge in 13 13 14 7 7 GCA GCA§§6105(a)
6105(a)states statesinin5111:
full:
14
15 15 Any Judge Any Judge shall disqualify himself himself or or herself herselfin in any any proceeding in in which which his or her impartiality reasonably be impartiality might reasonably 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 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 in interpreting this section, section, explained that that "what "what matters matters isis 'the 20 appearance of of bias,' not 'actual bias."' Dizon 'actual bias."' Dizon v.
v. Superior SuperiorCourt, Court,1998 Guam331],i 10 1998Guam 10 (emphasis 21 added) added). "[N]o "[N]oactual actualshowing showingofofbias biasisisnecessary necessaryfor forrecusal recusal to lie."IdId.1],i10.
to lie." 10.Instead, Instead, the the Court 22 23 must focus on "whether must focus "whether aa reasonable reasonable person would have a reasonable basis for reasonable basis for questioning the 23 24 Judge's impartiality, not whether the Judge Judge is is impartial."
impartial." People People v.
v. Tennessean, Tennessean, 2010 Guam 12 24
25 1] 33 citing citing United th Cir.
25 ,i 33 United States States v.v. Cherry,_330 Cherry,33()F.3d F.3d 658, 658, 665 665 (4th Cir. 2003).
26 3 3 Statementof Statement of Obj.
Obj. 77 GCA GCA§§6107 6107&&Mot.
Mot.totoDisqualify.
Disqualify. (Jul.
(Jul. 19, 19, 2024).
2024).
27 Decision Decision andand Order Case No.
No. CF0466-24, CF0466-24,People v. Fenterano terano Nath Nate Page 5 of 14
In Guam, a Judge is mandated to disclose any facts facts which which disqualify disqualify them them under Section 2 6105, if such 6105, if such grounds grounds exist.
exist. 77 GCA GCA §§ 6106.
6106. When When such grounds exist such grounds and aa Judge exist and Judge fails to declare fails to declare 3 them as required, any any party party may may file file aa statementof statement -ofobi section under objection under 7. GCA §§ 6107.
7_ GCA 6107. The The Supreme Supreme 4
Court of Guam has described the procedure procedure prescribed prescribed by by 77 GCA GCA §§ 6107 6107 as as follows follows::
5
6 Pursuant to 7 GCA 6107, if a judge judge does not recuse himself, then a party may, 'at the earliest practicable practicable opportunity,'
opportunity] 'file ... a written statement objecting to 7 the ... Judge.'
udge' TThehe wr it t en sstatement written ta must 'set[[ ] forforth tthe fafact or or fa ct facts constituting the ground of of the disqualification disqualification of such ... Judge," and must be Judge,' and 8 sewed servedononthe the Judge.
Judge. Within Within'ten 'ten(1(1 0)
0) days days after after the service ... or ... filing of of any 9 statement, statement, whichever whicheverisis later later inin time,' a Judge may file a 'written answer,' which which must be 'verified 'verified in in the the manner manner prescribed prescribed for for the the .verification of of pleadings.' If 10 the Judge opposes his his own own disqualification, disqualification, then then 'the 'the question question of of the the... Judge's ... Judge's disqualification shall be be heard heard andand determined determined byby some other Judge.'
11 11 See Van Dox See Van Dox v. Superior Co., i! 17 Ct., 2008 Guam 77 1] 17 (internal (internal citations citations omitted).
omitted).
12 12
13 In In the the same case,the same case, GuamSupreme theGuam SupremeCourt Courtmade madeclear clearthat that"with "with respect respect to to the statutory statutory 13
14 14 p rovision ovis ion requiring equ ir ing that t ha t dis qu a lif ica t ionbe disqualification b e urged r ged aatt t he the ' ea'earliest r lies t p rpracticable a ct ica b le
15 15 opportunity,' the intention intention 'is 'is clear clear that that failure to comply with the provision constitutes
16 16 a waiver."' Id 1],r 40 citing Caminetti waiver."' Id inetti v.v. Pac.
Pay. Mut.
Mai. Ins. of Cal.,139 Ins. CO. offal., 139P.2d P.2d 930, 930, 933 933 17 17 (Cal. (Cal. 1943). Therefore, the 1943). Therefore, 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 A. Did Did the the OAG OAG Fail Fail toto File Fileatatthe the'Earliest 'Earliest Practieable Practicable Opportunity,'
Opportunity,' and 21 Statement of Therefore Waive Their Statement of Objection 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 the urged he "ea r liest practicable "earliest 24 opportunity." opportunity." See Van Dox v.
See Van v. Superior Superior Ct., Ct., 2008 Guam771],r 17 (emphasis added).
2008Guam added). The 25 Supreme Court takes Guam Supreme takes this this language language from aa California California case case and and notes notes that that an an 26
27 Decision Decision and and Order Case People v. Case No. CF0466-24, People v. Fenterano Nath Nate Page Page 6 of 14 1 "objection "objection was was waived waivedwhere where party party failed failed to torequest request disqualification disqualification until until three months months 2 2 after after the party was the party was aware aware of of the the disqualifying disqualu§/ingfacts." ,r 45 citing facts ... "IdIdatat1145 citingCam Caminetti v.
v.
3 Mut. Ins.
Pac. Mai. Ins. Co. ofCaZ., of Cal., 139 139 P.2d P.2d 930, 930, 933 933 (Ca1.1943)
(Cal.1943) (emphasis (emphasis added).
added).The The Guam Guam 4 Supreme Court also Supreme Court also notes notes that that aa "statement "statementmay maybe be untimely untimely if if a party waits until until the 5 oftrial eve of trialtotorequest request disqualification based on information disqualification based information made made known known months months 6 6 7 Id atatii,r46 earlier." Id 46citing citingPeople v. Pariah, People v. Pgnah, 107 P.3d 790, 824 (Cal.2005) (emphasis (emphasis 7 added). the case added). In the case before before us, us,AG AG Moylan Moylan knew about the allegedly about the allegedly disqualifying facts facts 8
9 9 almost two decades in advance, advance, because becauseAG AG Moylan's Moylan's ex-wife ex-wifeDorris Dorrisremarried remarried Judge Judge
10 10 Tolentino in in 2005.
2005. Answer Answer to to Statement Statement of Obj. at at 3 (Jul. 29, 2024).
11 11 Further, AG Moylan Further, AG Moylan himself himselfrecognized recognized that that the "earliest possible opportunity"
opportunity"
12 12 to address the allegedly disqualifying facts was almost two years ago, in December 2022, to address the allegedly disqualifying facts was almost two years ago, in December 2022, 13 13 before taking taking office, office, because because that's that's when when then-Attorney Moylan chose then-Attorney Moylan chose to meet with 14 14 Judge Tolentino Judge Tolentino and andwaive waive the theconflict.
conflict. Id Id at at 2. AG AG Moylan Moylandoes does not not dispute this, and dispute this4, and 15 15 16 the meeting meeting took place in front of of witnesses, witnesses, including the the Administrator Administrator of of Courts.
Courts. Id Id 16 17 17 It is It is correct correct that that the the newly elected elected Attorney General General sought sought to the conflict in to resolve the in
18 18 December December 2022 before taking office, office,because becausethere there are are massive massive administrative administrative concerns concerns
19 19 with with disqualifying disqualifyingone one of ofthe the Guam Guam Superior Court's limited limited Judges from every criminal Judges from
20 20 case on the the island, island,and andany anycivil civil case case charged bythe chargedby theOAG OAG as as well.
well. This This is is why why the the Guam Guam 21 Supreme has cautioned Supreme Court has cautioned that that aa Judge Judgeshould shouldnot not"distance "distance themselves themselves from cases cases 22 at the the slightest slightest suggestion" because because "[a]
"[a]Judge's Judge'sduty dutytotohear hearaa case case and and keep the wheels 23 of ofjustice justice rotating rotating is just as strong as his strong as his or or her her duty dutyto to remove remove himself himself or herself herself if aa 24 reasonable person would reasonable would not not believe believe in his or her impartiality." v. Guitierrez, 2000 impartiality." Ada v.
25
26 44 Min.
Min. Entry at at 9:48:01 9:48:01 AM AM (Mot.
(Mot. Hearing, Hearing, Aug. 15, 2024).
27 Decision Decision and Order . Case No.
No. CF0466-24, CF0466-24, People People v. Fenterano Nath Nate Page 7 of of 14 1 at ,r,r Guam 22 at W 12-13. with all 12-13. With allofofthis thisininmind, mind,the theCourt Court will willnevertheless nevertheless address address the the
2 2 OAG'stimeliness OAG's timelinessarguments.
arguments.
3 AGMoylan's a. AG Moylan'sWaiver Waiver StillApplies, Still Applies,Even EvenThough Thoughthe the OAG OAGFiled Filed this this 4 Case in Case in 2024 2024 The OAG OAG maintains maintains that they they filed their their Magistrate Complaint for this this case in 5
July 2024, July 2024, and and that thatitit is is therefore therefore timely.
timely. People's Resp. to J.
J. Tolentino's Answer to 6
7 Statement of Obj.
Statement of GCA §§ 6107 Obj. 77 GCA 6107 & & Mot.
Mot. to to Disqualify Disqualify at at 3, 3, (Aug.
(Aug. 8, 8, 2024).
2024). In In aa more more
8 typical situation, situation, the Guam Supreme Court has Supreme Court hasheld held that that"a "a statement statementof of objection is
9 9 normally normally timely ififititisissubmitted submitted prior prior to to any any hearing hearing before before the the challenged challenged judge in in the 10 10 See Van Dox matter." See matter." Dox v.
v. Superior Superior Cr., Ct., 2008 Guam Guam 77 1] 46 ,r 46 citing Hollingsworth, 236 236 11 11 Cal.Rptr. at at 195-96 (emphasis added). However, emphasis added). However, this is not a "normal"
"normal" situation.
situation. This is 12 the Attorney General the Attorney General of Guam.
Guam. If If we we disqualify disqualifyJudge Judge Tolentino Tolentino from from hearing hearing cases cases 13 13 14 related to AG Moylan, related to Moylan, we we will willdisqualify disqualifyJudge Judge Tolentino Tolentino from from Guam's Guam's entire 14 15 prosecution prosecution mechanism.
15
16 16 When the Guam Supreme Court laid laid out out the the normal normal timeliness timeliness standard, standard, stated stated
17 17 above, the Court cited Hollingsworth, Hollingsworth, but but that California California case involves involves aa situation situation where
18 18 a Defendant could not possibly possibly predict predict that that the the Judge Judge in in question question would would hear hear the case 19 19 ahead of time. See ahead of See Hollingsworth, 236 Ca1.Rptr. at 197 Cal.Rptr. at 197 ("We ("We find find ititunreasonable, unreasonable, as as 20 well as impracticable, well as impracticable, to to require require presentation of of a statement of of disqualification until it disqualification until it is 21 known which judge will will hear hear the the case."). Unlike Unlike the the Defendant Defendant in Ho llingsworth, AG Hollingsworth, 22 Moylan Moylan knew knew that that Judge Judge Tolentino Tolentino would hear hear AG AG Moylan's Moylan's.cases, cases,because because Judge Judge 23
24 Tolentino is is aa Guam Guam Superior Court Court Judge Judgeand andAG AGMoylan Moylan is the the Attorney Attorney General General of of 24
25 Guam.
Guam.
26
27 Decision Decision and and Order Case People v. Case No. CF0466-24, People v. Fen Fenterano terano Nath Nate Page 8 of14 Page 1 knew well AG Moylan knew well ahead ahead of of time that Judge Tolentino would be hearing AG
22 Moylan's cases, Moylan's cases, which which is why AG Moylan Moylan himself himself asked Judge Tolentino for a meeting meeting 3 of Obj.
to address the countless, potential conflicts. Answer to Statement of Obj. at at 2 (Jul. 29, 4 2024). Typically, the the timeliness timeliness requirement should be "liberally construed" to promote 5 justice. See See Van Dox 2008 Guam 7145 Ct., 2008 Dox v. Superior Ct., 1] 45citing citingEagle Eagle Maint.
Mains. & & Supple 6 Co. v. Super. Co. v. Super. Ct., Cal.Rptr. 745, Ct., 16 CaLRptr. 745, 747 747 (Dist.Ct.App.1961).
(Dist.Ct.App.1961). However, However, again, again, when when the 7
8 Supreme Court Guam Supreme Court emphasizes emphasizes this this liberal liberal construction, construction, they cite aa California California case
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 trial setting, what what judge would would be assigned assigned to try his
11 11 case in a particular department of particular department of the court where the court where the the trial trial date date has has been been set over." Id.
set over." Id 12 12 (emphasis added).
13 13 The Gua Guam SSupreme upr CCourt's normal our t 's nor ma l ststandard clearly a nda clea ly aapplies pplies in aa t typical ypica 14 14 situation, but situation, but the the case before us case before us is not typical:
typical: it involves the Attorney General.
General. AG 15 15 clearly knew "what judge would Moylan clearly would be be assigned assigned to to try try his his cases,"
cases," because because the 16 16 17 17 of Attorney General represents the People, and the People inevitably try cases in front of
18 18 every Superior Court Court Judge, Judge, including including Judge Judge Tolentino.
Tolentino. This This isis why why AG AG Moylan met
19 19 with Judge Tolentino back in December December 2022 to specifically address address Judge Judge Tolentino's Tolentino's
20 criminal docket, criminal before taking docket, before taking office.
office. Further, Further, AG AG Moylan Moylan does dispute that he does not dispute 21 purposely waived any potential conflicts during the meeting. Min. Entry at 9:48:01 9:48:01 AM 22 (Mot. (Mot. Hearing, Hearing, Aug.
Aug. 15, 15, 2024). This waiver 2024). This waiver stood stood for for over over aa year year and and aa hal£5 The AG half. 5 The AG 23
24 5 5 SeeAnswer See Answerto to Statement Statement of Obj. at 6 (Jul. 29, 2024)
(Jul. 29, 2024) citing citing People v.
v. Balatico, Balatico, Crim. Case No. CM0188-24;
Case No. CM0188-24; People 25 v. Rosal, Rosol, Crim. Case No. CF0270-24, Case No. CF0270-24, and People v. v. Rik at, Crim. Case Rikat, No. CF0423-24 Case No. CF0423-24 and and Shane ShaneTenorio Tenorio Healy, Healy, "Akoma trial:
trial: Judge denies admission of AG AG evidence", evidence", Marianas Variety, November 23, 2023, 2023, Akoma trial:Judge Akoma trial:Judge 26 denies admission admission of AG evidence I News I Marianas Varietv AG evidence Variety News News & Views (mvarietv.com).
(mvariety.com).
27 Decision Decision and and Order Case No. CF0466-24, People People v, v. Fen Fenterano terano Nath Nate Page 9 of14 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 would not "promote justice."
justice." Van Van Dox Dax v.
v. Superior SuperiorCt., Ct.,2008.
2008 Guam Guam 7145 1]45 3 citing Eagle Mains.
Maint. & & Supple Supple Co.
Co. v.
v. Super. Ct.,, 16 Super. co. 16 Ca1.Rptr.
Cal.Rptr. 745, 745, 747 747 44 (Dist.Ct.App.1961). (Dist.Ct.App.1961 ).
5 SanAugustin b. San Augustin Does Not Not Justify Justify OAG's Statement of Objection TAG's Statement 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 10 disqualified disqualified judges."
judges."People's People'sResp.
Resp. to to J.
J. Tolentino's Tolentino's Answer AnswertO to Statementof of Obj.
Obj. 77 GCA GCA
11 11 §§ 6107 & Mot.
6107 & Mot. to to Disqualify Disqualify at at 3 3 (Aug.
(Aug. 8, 2024). The 8, 2024). OAGalso The OAG also notes notes that they filed that they filed 12 12 . . . | their Statement thelr ofOb]
Statement of Objection echelonthe theday dayafter afterthe theGuam GuamSupreme SupremeCourt Court issued issued San Augustin.
Augustin.
13 However,the Id. However, theGuam GuamSupreme Supreme Court's Court'ssupervisory supervisoryauthority authority was was not not invented invented in in July July 14 14 2024, 2024; itithas has been been in in use use for decades.See decades. See People v.v. Angoco, Angoco, 2006 Guam 18 1]29 (holding 18 129 (holding 15 15 16 that the Guam that the Guam Supreme Court's supervisory Supreme Court's 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 Augustin, the Guam Supreme addressed"(1)
Supreme Court addressed "(1) the the manner in which judges are
l
19 19 appointed to review review the the denial denial of ofdisqualification disqualification requests, and (2)
requests, and (2) the rights of of the the
20 20 parties to to briefing and hearing hearing once oncethe thereview review is is assigned assignedto toaareviewing judge...17" San reviewing judge 21 . . . | I n n 2024Guam2134.
Augustin, 2024 Guam 2 1] 34.This Thls involves involves judges revzewzng reviewing dz5qualy'icatzon disqualification requests, 22 not the the disqualification itself. As disqualification itself. As such, such, San San AugustiN Augustin does does not not apply apply to the the 23 disqualification disqualification issue before us.
us.
24
25
26
27 Decision Decision and and Order Case No. CF0466-24, People People v.
v. Fen Nate Fenterano Nath Page10of Page 10 14 14
1
1 Aguon is Not Binding Precedent, c. Aguon Precedent, But Even If It Was, It But Even It Establishes Establishes Precedent for a Defendant, the OAG Defendl:lnt, Not the OAG 2 Although San Augustin is is not not relevant relevant to to the the case, case, the the same same cannot cannot be said for 3 the first Aguon, the first instance instance where aa trial trial court court disqualified Judge because "a Judge Tolentino because 4 5 reasonable person could question whether Judge Tolentino could be impartial in a case 5 6 6 proceeding proceeding at at the direction of the direction of [AG]
[AG] Moylan." People p l oof f GGuam u a m vv.. N Nakita ik Aguon, T A
77 CM0145-21 -2 1 at 88 (Su per. Ct.
(Super. Ct. Gu a Guam. Apri Aprill 55,, 22024).
0 2 4 ). Thi s deci This not bibinding, s not si on i is decision ndi
8 however, as it was not issued by the Guam Supreme Court. Further, the objection in the
9 case arose arose because becausethe theDefendant Defendant filed Motion for Disqualification filed a Motion Disqualification of of Prosecutor Prosecutor (not
10 a Statement of Objection under Statement of under 7 GCA §§6105)
6105)and andthen thenthe the Defendant Defendant later later argued argued 11 11 during ri ng a hearing ng on Ma 1, 2024, rch 1, March 2024, that "there "there had been an an undisclosed undisclosed familial f~milial 12 12 relationship between between Judge Judge Tolentino Tolentino and Moylan ... as" Id. at and Douglas Moylan at 4-5. Therefore, the 13 13 g u does not apply to objections by the OAG, but instead holding in Aguon instead to objections by 14 14
Defendant. Even if Aguon a Defendant. g was bindiNg binding precedent, AG Moylan cannot make the 15 15
16 16 preposterous there has preposterous claim that there has been an "undisclosed familial relationship" between
17 Moylan has Judge Tolentino and himself. AG Moylan has known known about about this relationship for twenty
18 18 years and, and, unlike unlike the the Defendant Defendant in Aguon, g AG Moylan Moylan waived waived the the relationship relationship in 19 19 December 2022.
2022.
20 d. AG AGMoylan's Moylan'sWaiver WaiverisisofofParticular Particular Concern, Concern, Given that the OAG OAG 21 May May be be Attempting Attempting to Manipulate the Criminal Criminal Justice System Finally, the fact that AG Moylan Moylan waived waived the the conflict conflict and then seems to have 22
23 rescinded that waiver is of particular concern, because the the Guam Guam Supreme Supreme Court makes makes
24 it clear that it clear that 77 GCA GCA §§ 6105 6105 "is "is not not intended to 'bestow intended to veto power 'bestow veto power over or to judges or over judges be to be
25 used as as aajudge judgeshopping shoppingdevice."'
device."' San v. Superior San Agustin v. Superior Court of ofGuam, Guam, 2024 Guam 26 ,r 24 2 1[ 24 (quoting People o p l e vv.. CCamaddu, a m o d d u , 22015 015 G ,r 80 Guam 22 1] 80 (quoting Nichols i chole vv. Alley, 71 27 Decision Decision and and Order Case No. CF0466-24, PeoplePeoplev.v. Fen Fenterano Nate Nath Page 11 of 14 11 F.3d 347, F.3d 347, 351 (10 th Cir. 1995)
351 (10th 1995) (per curium), cf Ada, curiam); cf Ada, 2000 Guam ,r 21 Guam 22 1] 21 ("We ("We do not
2 2 want to open a Pandora's box in ~hich which parties begin drawing a judge's judge's family tree each 3 time it seems that a judge judge will rule against them."). AG Moylan did not question his own 4 Judge Tolentino, waiver with Judge Tolentino, until until aayear-and-a-half year-and-a-halfinto into AG AG1VIoylan's Moylan's tenure, tenure, when 5 Judge Tolentino issued a major dedsion decision with with which which AG AG Moylan Moylan seriously disagreed.
6 6 In HI that that case, case, in in the the first first decision decision to to ever address Statement of Objection by the address aa Statement 7
8 OAG regarding AG Moylan's Moylan's relationship relationship with with Judge Judge Tolentino, the Honorable Maria
9 T. Cenzon notes that the timing timing of the OAG's Objection Objection is "suspect "suspect because it comes on
10 10 Decision and Order the heels of Judge Tolentino's Decision Order issued on April 25, 2024, granting
11 11 Defendant Sablan's Motion Defendant Sablan's Motion to Disqualify the Office Disqualify the Office of of the the Attorney Attorney General General and and 12 12 mandating that a special prosecutor be appointed." People of of Guam Guam v.
v. Richard Y.
Y
13 13 Yabnez, Yabnez, et. al, CF0447-23 at 21 (Super. Ct. Guam. June 12, 2024). Since then, and only et. al, 14 14 a few weeks after filing tiling the Statement Statement of Objection in this case, AG Moylan published 15 15 an oop-ed p in Pacific Daily News, Pacyic Daily News, confirming confirming that that he he seeks overturn his own seeks to overturn own 16 16
disqualification disqualification by Judge Tolentino in the very case noted by the Honorable Maria T.
17 17
18 18 Cenzon:
19 19 concerned that the Guam trial courts are engaging in Judicial Activism We are concerned Activism and re-writing re-writing Guam Guam law that expressly expressly requires that the Guam requires that Guam Attorney Attorney 20 General be the public prosecutor and to provide legal services to government stewards of officials who are only stewards of the People, and are not the People of Gµam, 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 have itit corrected either seek to have either in this court or 23 higher courts.66 highercourts.
24
25 6 6 Attorney General Douglas Attorney Moylan, "LETTER:
Douglas Moylan, Courtdecision "LETTER: Court decisioninterferes interfereswith with elected elected AG's AG's ability ability to to fight fight corruption", corruption", Pacu'ic Daily News, Pacific Daily News, June 2, 2024, 2024, LETTER: Courtdecision LETTER: Court decisioninterferes interfereswith with elected elected AG's AG'sability ability to to fight fight 26 corruption II Opinion Opinion lI guampdn.com.
guampdn.com.
27 Decision Decision and and Order Case No. CF0466-24, Peoplev.v. Fen CF0466-24, People Fenterano NathNate Page 12 of 1414
The Court cannot discern if AG Moylan started disqualifying Judge Tolentino, because, 2 Moylan writes, as AG Moylan writes, he isis "concerned "concerned that that the the Guam Guam trial trial courts courts are are engaging engaging in in Judicial Judicial 3 he wishes Activism" and he wishes to to find find aa better better outcome outcome with with different different Judge.
Judge. These These circumstances circumstances 4
5 AG Moylan's surrounding AG Moylan'ssudden suddenobi objection against Judge Tolentino, action against Tolentino, after after a year-and-a-half year-and-a-half of of
66 not objecting, inform inform our decision about the waiver, waiver, because because the the Court should should seek to avoid
7 "outcomes which lead "outcomes lead to to the the manipulation of the manipulation of the criminal criminal justice justice system."
system." See People People v.
8 Camaddu, ,r 80 Camaddu, 2015 Guam 2 1] 80 (stating (statingthat thatififaatrial trialcourt courtrecused reused itself "every time it 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 which could lead to a manipulation of of the criminal justice system."). For 11 11 this reason, and all all of of the the reasons reasons above, the the OAG's waiver should OAG's waiver should be be treated treated as as aa failure to file 12 at the "earliest at the "earliest practicable practicable opportunity"
opportunity" under under 7 7 GCA GCA §§ 6107.
6107.
13 13 Does Judge B. Does Judge Tolentino Tolentino Have Have aa Disqualifying Disqualifying Relationship Relationship that Creates Creates the 14 14 'Appearance of Bias' Under 'Appearance of Under 77 GCA 6105?
15 15 The Court declines to answer this question definitively. Given the waiver under
16 16 77 GCA 6107, itit is GCA §§ 6107, not necessary is not necessary for the Court for the Court to to reach reach the the alleged alleged bias bias under under 77 GCA GCA 17 17 6105, because 6105, because the objection objection is is procedurally procedurally defective.
defective. However, However, given recent given the recent 18 18 revelations in Aguon, Defendants are not precluded from raising their objections. Only 19 19 the OAG is precluded.
20
21
22
23
24
25
26
27 Decision and Decision and Order People v.
Case No. CF0466-24, People v. Fen Fenterano terano Nath Nate Page Page 13 of 14
CONCLUSION AND ORDER 2 For the above reasons, the Court DENIES the OAG's Statement of Objection and 3 declines to disqualify the Honorable Alberto E. Tolentino. The Court returns this case to the 4 Honorable Alberto E. Tolentino.
5
6 SO ORDERED, this l,°I day of _/1_~_...,,.__""_c.S~{~__ 2024.
7
8
9
10 HON C. TERLAJE 11
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22 SERVICE VIA·E-MAfL-
1acknowledge that an electronic aipy.~original was e-mailed to:
23 IJJ.z1. cP-O'SC,,
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27 Decision and Order Case No. CF0466-24, People v. Fenterano Nath Page 14 of 14