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211% MEN 29 PH 1=39 . . . "m I 'T $L§F?§f§ ==* C"i'fL,5§l~1l15 g: f"§§ifl IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM
PEOPLE OF GUAM GUAM CRIMINAL CRIMINALCASE CASENO:
NO:CF0482-24 CF0482-24 GPD Report GPD ReportNo.
No.24-15964 24-15964 vs.
DECISION DECISION AND ORDER MARK MARK ANDERSON PAULINO, PAULINO, DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF DOB:08/15/1990 DOB: 08/15/1990 OBJECTION
Defendant.
This matter is before matter is before the the Honorable Dana A.
Honorable Dana A. Gutierrez Gutierrez for the the limited limited purpose purpose of
reviewing the Office reviewing the Office of of the the Attorney Attorney General's General's (the (the "OAG")
"OAG")Statement Statement of ofObjection Objection
("Objection"), in which the the OAG obi eats to the objects the Honorable Honorable Alberto Alberto E. Tolentino ("Judge E. Tolentino ("Judge
Tolentino") presiding presiding over over the the above-captioned above-captioned matter matter due due to his his relationship relationship with Attorney
General Douglas Moylan General Douglas Moylan ("Moylan").
("Moylan"). Upon consideration of the consideration of the arguments and applicable
Guam law, the Court hereby DENIES the OAG's Objection. For this reason, Judge Tolentino
may continue to preside over over this matter.
matter.
FACTUAL BACKGROUND
The following facts are undisputed:
undisputed: Doris L.G. Tolentino ("Doris") and Moylan were Tolentino ("Doris")
had two children-Brandon (born 1990)
married and had 1990) and Angela Angela (bam (born 1992)
1992) (the (the "Moylan "Moylan
Children"), Children"); Doris Dorisand and Moylan Moylandivorced divorcedinin1997, 1997;Judge Judge Tolentino Tolentinoand and Doris Dorismarried married in in 2005 2005 and and
remain married today, today; as such, such, Judge Tolentino is the stepfather of of the the Moylan Moylan Children.
Children. See
Answer to Answer to Statement Statement of ofObi ectiolt ("Answer")
Objection, ("Answer") at ,i,i 14-15 (July 29, 2024).
at111114-15 1
As recently As recently as as October October 2022, 2022, Judge Tolentino sue Judge Tolentino sua sponge sponte disqualified himself himself from from cases cases
in which Moylan Moylan appeared appeared before him as private counsel becauseof counsel because of his his relationship relationship with with Moylan Moylan
as as the the stepfather of the stepfather of the Moylan Moylan Children.
Children. See Id atat1],i 3, See Id 3; see see also also Statement of Objection Statement of Objection
DECISION AND ORDER DENYING DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; CF0482-24; People of ofGuam Guam v.v. Mark Mark Anderson Anderson Paulino Paulina
("Obi section") at ("Objection") Ex. A-MM (July 19, 2024) (providing at Ex. examples of Judge Tolentino (providing examples Tolentino's '
disqualifications in disqualifications in cases cases involving involving Moylan Moylan from2014 to 2022).
from2014 to
In 2022, Moylan was elected Attorney General of of Guam and was scheduled scheduled to take office
January 2023. in January 2023. Answer at 11 ,i 5.5. In In December December 2022, 2022, Judge Judge Tolentino Tolentino and and Moylan Moylan met with
various other various other staff staff members members of of the the OAG and and the the Superior Superior Court Court of of Guam Guam to to discuss discuss Judge Judge
Tolentino's previous Tolentino's previous disqualification disqualification in in Moylan's Moylan's cases. Idatat1],i 6. According to Judge Tolentino cases. Id
undisputed by the OAG, and undisputed OAG, Moylan Moylan "assured "assured [Judge [Judge Tolentino]
olentino] and and the the other members in
attendance t enda nce that t ha t he he perceived per ceived no conflict in no conflict in his election his elect ion as tthe At Attorney t Generall and tthe
prosecution of criminal cases cases before before [Judge Tolentino]." Id [Judge Tolentino]." Id at,i at1]7.
During and after January January 2023, 2023, Judge Judge Tolentino Tolentino presided over many cases involving the
OAG without OAG without objection objection from from the the OAG.
OAG. See Answeratat 114 See Answer ,i (stating (stating that that Judge Judge Tolentino's Tolentino's docket
consists mostly of criminal matters brought by by the the People of Guam through the OAG).
However, beginning in April of However, beginning of 2024, 2024, three three Superior Superior Court of Guam Guam Judges Judges issued issued
Decisions Decisions and Or Orders aaddressing ddr essing whether Judge Judge TTolentino olentino wa wass disqua lified fr disqualified from ma tter matters
involving involving Moylan Moylan due due to his relationship with Moylan and the Moylan Children.
Honorable Joseph n.
First, on April 5, 2024, the Honorable N. Camacho, presiding presiding as Judge Pro
Tempore, issued a Decision and Order in People of of Guam v.
v. Nakita Aguon, analyzing whether Nikita T Aguon,
Judge Judge Tolentino Tolentino was was disqualified from cases disqualified from cases involving involving Moylan Moylan pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105(a),
states which sta tes that tha t a "Judge "Judge shallll disqua disqualify lify himself himself in in any a ny proceeding oceeding in in which which his her his or her
impartiality might reasonably be questioned" unless both parties agree to have the judge judge continue
Aguon, CM0145-21 to sit in the proceedings. Aguon, at 7 CM0145-21 at 7 (Super. Ct. Guam (Super. Ct. Guam April April 5, 5, 2024);
2024), 77 GCA GCA §§
6105(a). 6105(a). Judge Camacho that :s"ao reasonable cho found tha reasonable person person could question question whether whether Judge
Tolentino could be impartial in a case proceeding at the direction of [AG] Moylan" due tO to their
3
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People People of ofGuam v.
v. Mark Mark Anderson Paulino Paulina
continuing relationships continuing relationships with with the the Moylan Moylan Children.
Children. Id at 8.
Id at 8. Thus, Thus, the the court court held that, that, "[a]t a
minimum, itit would would have have been been prudent prudent for for Judge Judge Tolentino Tolentino to to disclose disclose these these relationships relationships to the
parties." Id Id
Next, on June 4, 2024, the Honorable Elyze Blyze M. Iriarte issued a Decision and Order as the
recusal judge recusal judge in People People of Guam Guam v.v. Corina Jamel Taitingfong, Carina Jamel et al., Taitingfong et al., CF0024-24 CF0024-24 (Super.
(Super.~Ct.
Guam June 4, 2024). In that case, case, the the defendant objected to Judge Tolentino presiding over the
case, and Judge Iriarte Iriarte held that Judge Tolentino was disqualified from the matter. Taitingfong Taitingfong, ·
CF0024-24 CF0024-24 at at 10.
10. Judge Iriarte reasoned Judge Iriarte reasoned that pursuant to 7 GCA GCA §§ 6105(a), 6105(a), aa reasonable reasonable question
exists regarding exists regarding Judge Judge Tolentino's impartiality impartiality toward Moylan due to to their their mutual mutual relationship relationship
Tolentino's stepchildren with Judge Tolentino's stepchildren and and due to to the the fact fact that Judge Tolentino had previously sua sue
sponte disqualified sponge disqualified himself himself from from all all matters matters involving involving Moylan Moylan while in private while Moylan was in private
practice. Id.
Id. at at 5.
5. Further, Further, Judge Judge Iriarte Iriartedetermined determined that that the the proper proper procedure procedure would would have been for
matters where both parties Judge Tolentino to sit only in matters parties had waived their right to object to his
presiding over the presiding the case.
case. Id. at 8.
Id at 8. Because Because the the defendant defendant objected objected and and clearly clearly did not not waive that that
right, Judge Iriarte held that Judge Tolentino was disqualified from sitting on the case. Id. at at 8-9.
8-9.
Lastly, on June 12, 2024, the Honorable Maria T. Cenzon issued issued a Decision and and Order
OAG's Statement Denying the OAG's Statement of of Objection in People of v. Richard Y Ybanez, of Guam v. Ybanez, CF0447-
(Super. Ct. Guam June 23 (Super. June 12, 12, 2024).
2024). In In that that case, case,on May 1, onMay 1, 2024, 2024,the theOAG OAG objected objected for for the the first first
time to Judge Tolentino Tolentino presiding presiding over the matter matter due due to to his his aforementioned aforementioned relationship relationship with
Ybanez, CF0447-23 at 5-6. Sitting as the recusal judge, Moylan and the Moylan Children. Ybanez, judge, Judge
found that Cenzon found that Judge Tolentino Tolentino is not not compelled compelled to to disclose disclose his his relationship relationship with Moylan Moylan
under under 77 GCA GCA §§ 6105(a)
6105(a) or or any any other other section section of ofthe the recusal recusal statute. Id. at statute. Id. at 12-17.
12-17.
several reasons justifying Judge Judge Cenzon provided several Judge Tolentino's omission, including
4
J'
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People o/Guam of Guam v.v. Mark Mark Anderson Anderson Paulino Paulina
(1) that Moylan admitted during the meeting meeting with with Judge Judge Tolentino Tolentino aNd and other other staff staff members that
he per perceived no Continuing ceived no continuing conflict conflict rrequiring Judge Tolentino's disqualification, equir ing Judge disqualification; (2) that (2) that
Moylan's and Moylan's and Doris's Dori.s's relationship, relationship, which ended in 1997, 1997, ended ended sufficiently sufficiently far far in.the past as to
not currently be a concern concern when viewed objectively, objectively; (3)
(3) that the Moylan Children, who are Judge
stepchildren; are all adults Tolentino's stepchildren, adults living living on their own;
own, and (4) in the small legal community
of himself in all cases involving Moylan would be "(a) of Guam, for Judge Tolentino to disqualify himself "(a)
impractical to enforce, (b) negatively negatively impact the efficient administration of justice, and (c) lead
to judge-shopping judges in the same court." Id judge-shopping and/or overburden other judges at 17.
Id at 17.
Finally, on July 18, 2024, 2024, the Supreme Court of Guam issued an Opinion in In re Arthur the Supreme
San Agustin U San Agustin v.v. Superior Superior Court Court of ofGuam, et et al., al., 2024 Guam 2, disqualifying Judge Tolentino in
that matter, matter, but but on grounds that are unrelated unrelated to his relationship relationship with Moylan.
Moylan. The Supreme Supreme
Courtt of Gua Guam noted noted tha that they fir t they first issued their st issued their Or Order disqualifying der disqua Judge TTolentino lifying Judge olentino on
December 5, 2023, 2023, but but stated stated that that their their July July 18, 18, 2024 2024 Opinion Opinion supersedes supersedes that that Order.
Order. Sim San
Agustin, Agustin, 2024 Guam 22 at ,r 8.8. The at 1] The San San Agustin Court noted that Judge Tolentino had previously
himself in that matter because "he, his wife, and his chamber disqualified himself chamber clerk have or had close
Agustin and Nadeau, [a real party in interest], concluding this could create relationships with San Agustin
a conflict." Id at ,r 4. The matter was at 114. was then reassigned to the Honorable Presiding Judge Alberto
Lamorena III, C. Larnorena III, and and the the defendant objected objected to Presiding Judge Lamorena presiding over the
matter. Id at matter. ,r 5.5. The at 1] The issue issue of of Presiding Presiding Judge Judge Lamorena's Lamorena's recusal was then assigned to Judge
Tolentino, Tolentino, and Judge Tolentino issued a Decision and and Order Order concluding concluding that that Presiding Presiding Judge
not disqualified.
Lamorena was not ,r 6.6. Ultimately, disqualified. Id atat 11 Ultimately, the the Supreme Supreme Court Court of Guam held that that
because beca use Judge Judge Tolentino olent ino hadd disqua disqualified lified himself himself in in the underlying he under lying matter, t er , he was aalso he wa lso
disqualified disqualified from fromsitting sittingas asthe therecusal recusal judge judge and, and, therefore, vacated his decision and vacated his and disqualified disqualified
5
f
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People of ofGuam v.v. Mark Anderson Anderson Paulino Paulina
him ·from from the matter entirely.Id matter entirely. at ,r,r Id at 40, 54.
W 40, 54. The San Agustin The San Agustin Court clarified clarified the proper proper
when aa party procedure when party seeks seeks to to challenge challengeaa recusal recusal judge judgefor forcause. Id.atat1],r 34.
cause. Id
PROCEDURAL BACKGROUND
The instant matter was was initiated initiated on on July 10, 2024, July 10, 2024, when when the OAG filed filed aa Magistrate's Magistrate's
Complaint, accusing accusing Mark Anderson Paulino ro ("Defendant")
("Defendant") of three charges:
charges: (1) Promoting of of
Prison Contraband ison Contr aband (As 2nd Degree (As a 2nd Degr ee Felony);
Felony), (2) Possession of aa Fir (2) Possession Firearm Without Valid ear Without Valid rd Identification (As a 3rd Degree Identification Degree Felony);
Felony), and and (3)
(3) Destroying Destroying Evidence Evidence (As a Misdemeanor). On
July 12, 2024, 2024, the the matter matter was was assigned assigned to to Judge Judge Tolentino.
Tolentino.
July 19, On July 19, 2024, 2024, the OAG OAG filed filed their their Objection, Objection, stating stating that that "disqualification of Judge "disqualification of
Tolentino from Tolentino from this and any other other matter is required"
matter involving Moylan is required" due due to to their their familial familial
relationship. Objection at relationship. Objection at 7.
7. The The OAG argues argues that "[a] reasonable reasonable person would presume presume that that
Judge dge TTolentino's i no' s personal er s ona l relationship r el a t i ons hi pwith wi t h [AG]
[ AG ] Moylan M oyl a n and a nd his pprior ri years sspent yea p ent
disqualifying himself disqualifying himself from matters involving Moylan would from any matters would raise raise aa reasonable reasonable question question
about his impartiality and necessitates necessitates his his disqualification."
disqualification." Id. at 6.
Id at
The Court notes that the the OAG OAG has filed filed numerous identical objections to Judge Tolentino
over many presiding over many criminal matters. 1 However, criminal matters.1 However, the the Court Court takes takes judicial notice 2 of judicial noticed of the the fact fact that,
the OAG has not filed objections in all of to date, the of its cases before Judge Tolentino, and instead is
1 1 This Court has been This Court been assigned assignedtotohear hearthe dierecusal recusalof JudgeTolentino ofJudge Tolentinoin in several severalcases casesininwhich whichthe theOAG OAG has filed filed identical statements of identical statements of objection, objection, including, including, but but not limited to, not limited to, the thefollowing: People of following: People ofGuam Guam v.
v.
Pangelinan Reyes Peter Pangelinan Reyes Jr., CF0419-24 (Super.
(Super. Ct. Guam Aug. 5, 5, 2024), 2024); People of of Guam Guam v. v. Jamielynn Pangelinan Cabrera, Cabrera, CF0439-24 CF0439-24 (Super.
(Super. Ct. Guam July 30, 30, 2024), 2024); and People of Guam v.
and People v. Brian Jake Cepeda Alano, CF04l CF0411-24 (Super Ct. Guam July 1-24 (Super July 25, 25, 2024).
2 Guam Rules of Evidence ("GRE") Rule 201 governs judicial notice of of adjudicative adjudicative facts. "A judicially noticed fact must be one not subject subject to reasonable dispute dispute in that it is either (1) generally known within the territorial jurisdiction jurisdiction of of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably reasonably bebe questioned."
questioned." GRE GRE 201(b).
20l(b).
6
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People of ofGuam v.v. Mark Mark Anderson Anderson Paulino Paulina . . . 3 proceedinginincelTaln proceeding matters. 3 certain matters
In response response to the OAG's OAG's Objection, Objection, Judge Judge Tolentino Tolentino issued issued his Answer on July July 29, 29,
2024, denying that his disqualification was required in this case.
case. Answer at ii,r 35. In support Answer at support of of
position, Judge his position, Judge Tolentino olentino cites cites to to the meeting that he and the meeting and Moylan Moylan had had r regarding their egar ding their
potential conflict, and the fact that Moylan Moylan stated that he perceived no disqualification. Id at he perceived ,r at 1]7.
Further, Judge Further, Judge Tolentino Tolentino states states that that the the Moylan Moylan Children have "reached majority and adulthood
and have been residing at their their own residences." Id own residences." Id
This matter was assigned to was assigned this Court on July to this July 30, 30, 2024, 2024, for for the the limited limited purpose purpose of of
Tolentino's recusal.
deciding Judge Tolentino's recusal. On August August 5, 5, 2024, 2024, the the Court Court issued issued an an Order Order for for Further Further
Briefing, requiring the OAG to explain their position on whether the OAG has objected to Judge Judge
cases "involving Moylan" at the earliest practicable opportunity, Tolentino presiding over cases opportunity, as
Section 6107, considering Moylan has required by Title 7, Guam Code Annotated ("GCA"), Section
been in office since January 2023. The Court permitted, but did not require, the Defendant to
respond to the same question. On August 12, 2024, 2024, the OAG OAG filed filed their their Response, Response, arguing arguing that
their objection timely. 4 The objection was time1y.4 The Defendant Defendant did did not file a response.
DISCUSSION
77 GCA GCA §§ 6105 6105 provides provides the the substantive substantive grounds grounds for for judicial judicial disqualification in Guam.
disqualification in Guam. 77
GCA GCA §§ 6105(a)
6105(a) states in full:
states in full:
33 According According to to the the Superior Superior Court Court ofof Guam's Guam's Weekly Calendar for the week week ofof August August 26, 26, 2024, 2024, Judge Tolentino continues continues to have a full calendar of of cases moving forward which list the OAG as counsel. Judge Tolentino Tolentino remains scheduled scheduled to to hear hear progress progress hearings, hearings, status status hearings, hearings, further further proceedings, proceedings, motion hearings, pre-trial hearings, pre-trial conferences, conferences, change change ofof pleas, pleas, return return of warrants, and jury warrants, and jury selections selections and trials trials in criminal matters matters involving involving the OAG.
OAG. The The Superior Superior Court Court of of Guam's Guam's Weekly Wieldy Calendar Calendar is posted publicly on the Judiciary Judiciary of ofGuam's Guam'swebsite, website,available availableatathttps://www.guamcourts.org/Calendar/images/Weeldyhttps ://www.guamcourts.org/Calendar/images/Weekly-
AET.pdf.
44 The TheOAG's OAG's Response did not raise raise any new arguments not stated in their Objection.
7
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People a/Guam of Guam v.v. Mark MarkAna'erson Paulina Anderson Paulino
Any Judge shall shall disqualify himself himself or herself in any proceeding in which his oror her her impartiality impartiality might might reasonably reasonably be questioned, questioned, but if, following complete disclosure to all parties in the proceeding of of the reasons reasons for disqualification, disqualification, all all parties parties agree agree to to having the Judge dge cont inu e to continue t o sitit in in the pproceedings, oceedings , he he or or she need need not not disqualify himself himself or herself.
When grounds When grounds for for disqualification exist, 77 GCA disqualification exist, GCA §§ 6106 6106 requires requires aa judge judge to to disclose disclose any any
facts that facts that disqualify disqualify him him under Section 6105. If a judge judge fails fails to to declare declare his his disqualification disqualification as
required, any party may tile required, file aa statement statement of ofobjection, objection, setting setting forth forth the the facts facts constituting constituting the
grounds grounds of of disqualification of such disqualification of such judge.
judge. 77 GCA GCA §§ 6107.
6107. 77 GCA GCA§·§ 6107 6107 mandates, mandates, in in part:
part:
The statement of a party objecting to to the Justice Justice or Judge on the ground of ground of his his or or her herdisqualification disqualification shall shall be.
be. presented presented at the earliest practicable opportunity opportunity after after his or her her appearance appearance and discovery of discovery of the facts constituting gr ounds of constituting grounds of the the Justice's Justice's or or Judge's disqualification, and in any event before the commencement commencement of of the the hearing hearing of of any any issue issue of of fact fact in the action action or proceeding proceeding before such Justice or Judge.
77 GGCA C A §§ 6 6107 1 0 7 ( emp ha s i s aadded).
(emphasis dded) . IIff aa pparty a r t y ffails a i l s tto o ob j ec t aatt tthe object he "earliest practicable practicable
opportunity" after discovery opportunity" after discovery of of the the facts facts which disqualify disqualify a judge, judge, that that failure failure "constitutes "constitutes a
waiver." Van Dox v. Superior Court waiver." Court of ofGuam, Guam, 2008 2008 Guam Guam 77,r 1]45. As such, when a party Party remains
silent silent on on aa known known disqualification disqualification pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105(a), the the party party waives waives their their right right to to
later object to the judge presiding. People ofG11am Guam v. Win, Wia, 2020 Guam Guam 17 1128.
17,r 28.
"The rule rule that that a request for disqualification should be submitted prior to any hearing in
the matter before the challenged judge judge 'rests on the the principle principle that a party may not gamble on a
favorable Thus, a statement of decision' .... Thus, favorable decision' of objection is normally normally timely timely ififititisis submitted submitted prior
to any any hearing hearing before before the the challenged judge in the challenged judge the matter."
matter." Van Van Dox, Guam 77'Ly,r 46.
Dox, 2008 Guam
(emphasis added) (citing (citing to an exception exception that that it is is not not appropriate appropriate to wait until the eve of of trial trial to
request disqualification based based on information known known months months earlier).
earlier).
Importantly, Importantly, the the recusal recusal statute "is not intended to 'bestow veto power over judges or to statute "is
8
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People of ofGuam v. Mark Anderson Paulino Paulina \
be used used as as a judge shopping ~ 24 San Agustin, 2024 Guam 2 1]
shopping device."' San 24 (quoting People v.
Camaddu, 2015 Guam Camaddu, ~ 80).
Guam 2 ii 80). Likewise, Likewise, courts courts should should avoid avoid outcomes outcomes which which lead lead to the
of the manipulation Of Camaddu, 2015 Guam 2 ii~ 80 (stating the criminal justice system. See Camaddu, (stating that if if a
trial tn'al court court recused itself "every reused itself "every time time ititreceives receives unsolicited unsolicited material material uncomplimentary uncomplimentary to to a
defen~ant prior to trial defendant trial or sentencing [it]
[it] would create an intolerable situation which could lead
to a manipulation of the criminal justice justice system.").
1. The The OAG OAG Failed Failed to to Object Object at .at the the Earliest Practicable Opportunity Opportunitv
As noted, even when when aa judge judge fails fails to to disclose disclose any any potentially potentially disqualifying disqualifying facts, facts, aa party
may object may object to to aa judge judge presiding presiding pursuant pursuant to to GCA GCA §§ 6107 but must 6107 but must do do so so at at the the earliest practicable earliest practicable J
opportunity after discovery of the the facts facts constituting constituting the the ground ground of the the judge's disqualification or judge's disqualification
else that party waives their right to to bring bring an objection.
objection.
Here, although Judge Tolentino diderot not disclose disclose any any facts, facts, the OAG was still still required to
as possible bring its objection as soon as possible after after discovery of of the the facts.
facts. The Court Court understands understands the
OAG's position OAG's position to be that Moylan is generally generally involved involved in the cases, even if he is not the OAG's cases,
on aa matter. The OAG lead counsel on OAG cites cites to to Judge Judge Iria1'te's Taitingfong, in which she Iriarte's Decision in Taiiingfong,
wrote, "Deputy Attorney General Gloria Rudolph clarified wrote, clarified that Attorney Attorney General General Moylan is
consulted on general case strategy and plea agreements and and that that it would would be be incorrect incorrect to say say that
he is not personally involved in this case." Objection at 6. Given that Moylan is the head of of the
OAG, and that he is involved in matters which the OAG OAG prosecutes, prosecutes, the OAG was aware of of the
facts regarding Moylan's facts and Judge Moylan's and Judge Tolentino's Tolentino'srelationship relationshipby byJanuary January2023 2023.
Despite being aware of Judge Tolentino's Despite Tolentino's and and Moylan's Moylan's relationship relationship by by January January 2023, 2023,
the OAG argues argues two primary reasons reasons for why its Objection was timely:
timely: (1) because because the the OAG
filed its Objection prior to to Judge Judge Tolentino hearing the matter and only two weeks after after the case
9
DECISION AND ORDER DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OF OBJECTION OBJECTION CF0482-24; People of of Guam v.v. Mark Mark Anderson Anderson Paulino Paulina
was initiated, initiated; and (2) because the the Supreme Court of Guam issued an Opinion in San Agustin on
July 18, 2024 which provided July provided additional additional grounds on on which which to to require require disqualification.
disqualification. Response
at 3;
3, Objection at 5.
A. Court Views The Court Views the the TAG's OAG's Objection Objection in in the the Context Context of of Judge Judge Tolentin0's Relationship with Tolentino's Relationship with Moylan Movlan
First, the OAG OAG cites cites to Van Van Dox, Dox, quoting quoting in part, part, that that aa statement of objection statement of objection is
when submitted "normally" timely when submitted prior to a hearing by the challenged challenged judge and and also also that that the
timeliness requirement timeliness requirement should should be be "liberally "liberally construed"
construed" to to promote promote justice.
justice.Id.
Id at at 2.
2. The The OAG
provides an accurate accurate timeline of the procedural posture posture in this matter, matter, including that that the the OAG
filed its Objection Objection only one week week after after the matter matter was assigned assigned to Judge Judge Tolentino, Tolentino, only two
weeks after the case was initiated, initiated, and and before before Judge Judge Tolentino ever set the matter to to be heard.
heard. Id.
Id
at 3.
However However, , despite des p it e the t he Court's t 's Order der that ha t the he OAG OAG ex p la whet explain whether itit bbrought r ou ght itits
Objection at the earliest practicable Objection practicable opportunity, opportunity, "considering "considering Attorney Attorney General Moylan has been
in office since January 2023," the January 2023," the OAG failed failed to address address the timeline of of its Objection Objection in the
broader context broader context of of the the history history between between Judge Judge Tolentino Tolentino and and Moylan.
Moylan. In In doing doing so, so, the the OAG
seemingly seemingly would would have have the the Court Court view view this this matter matter as as an an isolated isolated objection objection rather rather than in the larger
context ofMoylan's Moylan's relationship with Judge Tolentino.
Thus, hus, the the Cour t must fir st analyze first whether it is appr analyze whether opr iate to appropriate to view view this this matter matter in
isolation or to isolation or to consider the larger context consider the context of the the history history of of the the relationship relationship between Judge Judge
Tolentino Tolentino and and Moylan Moylansince sinceand andprior priortotoJanuary January2023 2023.
i. The Van Dox Standard Is Not Applicable
When the Supreme Supreme Court Court of of Guam announced announced in in Van Van Dox Dox that a statement statement of of objection objection js
"normally timely if it is "normally timely is submitted submitted prior to any hearing prior to hearing before before the challenged judge in the challenged judge
10
v
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People People of ofGuam v.v. Mark Anderson Paulino Pauli ro
matter," it cited a California case in support: Hollingsworth v.
v. Superior Court, Court, 191 191 Cal. App. 3d ad
22,236 22, 236 Cal. Rptr.
Rptr. 193 193 (Ct.
(Ct. App.
App. 1987).
1987). In In Hollingsworth, Hollingsworth, the California Court of of Appeals Appeals found
that counsel presented its its statement statement of ofdisqualification disqualification at at the the earliest earliest practicable practicable opportunity opportunity
because the the case case had only recently been assigned to the challenged judge, and the Court found
that that it would be unreasonable and impracticable to require require a party party to to challenge a judge prior to
knowing which judge knowing which judge will will hear hear the the matter.
matter. Hollingsworth, Hollingsworth, 236 236 Cal.
Cal. Rptr.
Rptr. 193, 193, 196.
Further, ther , when when the the Va Van Dox Dax Cour Court wr ote tha wrote thatt the the timeliness timeliness rrequirement equir ement should be
"liberally construed "liberally construed to promote promote justice,"
justice," itit cited to another another California case: Eagle Maintenance &
Supply Co. v. Superior Court, Court, 16 Cal. Rptr.
Rptr. 745 745 (Dist. Ct.
Ct. App.
App. 1961).
1961). Inthat If that case, the California
of Appeals notes that the matter had been assigned Court of assigned to aa department department of of the the superior superior court, court,
but not yet to a specific judge. Eagle Maintenance, Maintenance, 16 Ca.
Ca. Rptr. 745, 747. Thus, the court stated, stated,
"it would place an undue hardship upon a litigant or his counsel to compel him to know before
the first scheduled trial trial setting, setting, what what judge judge would would be assigned to to try try his his case case ....
.. .go " Id
d
The logic in Hollingsworth and Eagle Maintenance which mandates a liberal Maintenance Which
construction construction of the timeliness standard does not apply to the unique situation situation before this Court.
While the OAG OAG ma mayy not not hahave ve known knowntha t Judge that JudgeTTolentino olentino would wouldbebe.aassigned ssigned the the aabovebove -
captioned matter, matter, itit was was aware aware by by January January 2023 2023 that that Judge Judge Tolentino Tolentino would be assigned assigned some
cases involving cases involving the the OAG, OAG, considering considering Judge Judge Tolentino Tolentino isis one one of of four four criminal judges5 in the criminaljudges the
Superior Court of Guam Guam and the OAG files files aa significant significant number number of of criminal criminal cases.
cases. Further, the
facts that give rise rise to to the the OAG's OAG's Objection have remained the same since prior to January 2023
and remain the same in all cases involving Judge Tolentino Tolentino and and Moylan.
Moylan. Therefore, Therefore, this is not a
55 Pursuant Pursuant to to Supreme Supreme Court Court of of Guam Guam Administrative Administrative Rule Rule No.
No. 23-002, 23-002, in in addition addition to to the four criminal judges in the Superior Court of Guam, the Supreme Court.of Court-of Guam created Court 8, which is comprised of of both criminal and non-criminal cases.
cases. Court 8 is assigned to the Honorable John C. Terlaje.
11
DECISION AND ORDER DENYING DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OF OBJECTION CF0482-24; People People of ofGuam v.
v. Mark Mark Anderson Paulino Pauli ro I
"normal" circumstance circumstance in which a party must must wait to see which judge is is assigned assigned and and thelJ., then, if
there is a conflict, challenge that judge.
judge.
Instead, more relevant Instead, a more relevant case case to to review in in this this matter matter is People of ofGuam Guam v.
v. Win.
Wia. There,
the Public Public Defender Defender Service Service Corporation ("PDSC") had Corporation ("PDSC") had raised raised the of the the issue of the judge's
r
disqualification previously disqualification in other previously in other cases.
cases. Win, 2020 Guam 17 Wia, 2020 ,r 27;
17 *ti 27, The Supreme Court Court of
that the Guam found that the defendant defendantwas was aware aware of conflict through of the conflict through his his counsel's involvement in
the other cases, and the cases, and the fact fact that that they they remained remained_silent silent in in Wia Win rendered rendered his his objection objection waived and and
untimely. Id untimely. Id
Wia, this matter is Like in Win, is more more appropriately appropriately viewed in its viewed in its broader context context regarding the
parties' previous previous knowledge of ofthe the facts.
facts. Here, Here, the the broader broader context requires the the Court Court to to review
Judge Tolentino's Judge Tolentino's and Moylan's relationship as well as Moylan's relationship as the the OAG's conduct in OAG's conduct in other other cases cases before
JudgeTolentino. Judge Tolentino.
ii. Viewing this Viewing this Matter inin Isolation Isolation Would Would Permit PermitOutcomes Outcomes Contrarv Contraryto to the the Recusal Recusal Statute's Statute's Intended Intended Purpose Purpose
The recusal statute shall recusal statute shallnot notbe be construed construedtotopermit permitjudge-shopping, judge-shopping,to tobestow bestowveto veto power
over over judges, or or to to permit permit manipulation manipulation of the criminal justice system.San San Agustin, 2024 Guam Guam 22
,r 24, 1] 24; Camaddu, ,r 80.
Camaddu, 2015 Guam 2 1] 80. Thus, Thus, the Court Court must must attempt attempt to to avoid avoid these these undesired und~sired
outcomes.I outcomes
First, the Court First, if the Court disqualified disqualified Judge Judge Tolentino Tolentino in in all all cases cases in Ir; which which the the OAG an OAG files an
objection but but allowed Judge JudgeTolentino Tolentino to to sit on any any matter matter in inwhich whichthe theOAG OAG did not object, object, it
would create create a system system in which the OAG OAG could could cherryfpick cherry-:pick which which cases cases to to disqualify disqualify Judge Judge
Tolentino. Tolentino. Allowing the OAG Allowing the OAGtotodetermine determine which which cases cases itit will will permit permit Judge Judge Tolentino to sit sit on on
would clearly promote promote judge-shopping.See See In In re re Takeno, Takano, No.
No. BR BR15-00108, 15-00108, 2016 2016 WL WL 7384603 7384603 Il (D. Guam Guam Dec.
Dec. 19, 19, 2016)
2016) (opining (opining that that allowing allowing aa party party tO to "cherry-pick"
"cherry-pick" which which cases cases to
12
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People of of Guam v.v. Mark Mark Anderson Anderson Paulino Paulina
disqualify a judge disqualify judge from from would promote judge-shopping). Unlike a criminal defendant, who is a
different individual in each case with the right to decide whether to object to a judge presiding,
the OAG represents the People of Guam. Because the People of of Guam Guam cannot cannot object object to Judge
Tolentino presiding presiding over over certain certain criminal matters but not others, disqualifying Judge Tolentino in
some some but but not not all cases, without further explanation, is inappropriate.
Likewise, permitting the OAG OAG to to sit sit on Qn known known facts facts for for months months and and then then raise raise those facts
at any given time to disqualify Judge Tolentino disqualify Judge Tolentino could could bestow bestow aa veto veto power power on on the the OAG and
allow the manipulation of of the judicial system. For example, the OAG OAG could, could, theoretically, theoretically, hold
these facts facts over over Judge Judge Tolentino's head with the the constant constant threat threat of of raising them in all all his cases cases
after any unfavorable after any decision. In unfavorable decision. In other other words, words, the the same same logic that that prevents prevents a party party from from
disqualifying disqualifying aa judge judge after an unfavorable unfavorable decision in aa particular case likewise prevents the particular case
OAG OAG from disqualifying disqualifying aa judge after an unfavorable decision in any case involving involving the OAG.
Without speculating about the speculating about the OAG's OAG's motive to to bring bring these these recently recently filed filed objections objections or
why it has objected income somecases casesbut butnot notothers, others, the the fact fact that that the the possibility exists that the OAG
could use these strategies strategies to forum-shop or manipulate the judicial system system necessitates necessitates that the
OAG's object Courtt view tthe OAG's ions br objections oa broadly, rrather a tthan in in isola t isolation in he inst in t the a nt ma instant t er matter.
Consequently, Consequently, the the Court Court declines declines to to find find that that the Objection Objection was was brought brought at at the the earliest earliest practicable
· oppor opportunity tunity solely solely because beca use itit was wa s filed filed promptly omptly after fter the the matter tter wass aassigned ssigned to Judge Judge
Tolentino.
B. The Supreme Court Court of Guam Issuing Its Its Opinion in San Agustin Does Not .Iustifv Justify the TAG's OAG's Failure FailuretotoObject Objectatatthe theEarliest EarliestPracticable Practicable Opportunitv Opportunity
The OAG OAG argues argues that that their their Objection Objection is timely timely because because itit was was filed filed shortly shortly after after the the
Supreme Court of Guam issued its Opinion in San Agustin on July 18, 18, 2024, and San Agustin
13
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; CF0482-24,· People of of Guam v.v. Mark Mark Anderson Anderson Paulino Paulina
provided ovided additional ddit iona l grounds gr ounds on on which tto r require equir disqua lifica t ion. The disqualification. T he OAG aargued r tthat ha
"[e]mploying the "[e]mp1oying the approach approach set set forth forth by by the the Supreme Supreme Court, Le., knowing Court, i.e., knowing all all the facts facts and and
understanding the context involving Judge Tolentino's Tolentino's history history of of disqualifying himself himself where the
AG was involved, it is clear that Judge Tolentino is a disqualified judge in any case where AG
involved. The Moylan is involved. The basis basis for for Judge Judge Tolentino's Tolentino's prior prior disqualification disqualification hasn't changed.
changed." 77
Objection at 5. Objection
San Agustin is distinguishable from the instant instant matter matter for for several several reasons.
reasons. First, First, that case
did not address address whether an an appearance appearance of of bias bias exists exists based on Judge Judge Tolentino's Tolentino's relationship relationship
with Moylan. Second, the San Agustin Court held that Judge Tolentino was disqualified disqualified in that that
matter as Matter as the the recusal recusal judge judge because because he he disqualified disqualified himself himself in the underlying case. Here, Judge
Tolentino has not disqualified himself himself in the underlying underlying matter matter and he is not the recusal judge.
judge.
Moreover, the Supreme Moreover, Supreme Court Court of ofGuam Guamfirst first issued issuedits its .Order in San Agustin On December on December
2023, which addressed the same 5, 2023, same issues issues related related to to Judge Judge Tolentino's Tolentino's disqualification disqualification as the
recusal judge as as the San Agustin July 18, 2024 Opinion, albeit in less detail.
detail. The The OAG does not
distinguish distinguish why why the July 18, 2024 Opinion in San Agustin triggered its mass objection, but the
December 5, 2023 2023 Order Order did not.
hot.
Therefore, the Therefore, the Court Court declines declines to to find that the issuance the Opinion in San Agustin issuance of the
circumstances allowing changed the circumstances allowing the the OAG to timely timely file file numerous numerous statements statements of of objection objection
against Judge Tolentino based on previously known facts.
c. C. The OAG Has Waived its Objection by Silence
As discussed As previously, parties discussed previously, parties can canwaive waive aajudge's judge's77GCA GCA §§ 6105(a)
6105(a) disqualification disqualification by by
remaining silent silent after after learning of of potentially disqualifying disqualifying facts.
facts. Win, Wia, 2020 Guam Guam 17 ,r This 17 1128.
"silence-as-waiver" rule "silence-as-waiver" rule renders renders an an objection objection as as waived when based on on information information previously
14
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0482-24; People of ofGuam Guam v.
v. Mark Mark Anderson Anderson Pauli ro Paulino
known known to the parties parties through separate litigation. Id.
separate litigation. Id. (finding that waived by that PDSC waived by silence
because they had raised the issue of the judge's disqualification in previous cases and, therefore, judge's disqualification
were aware of of the issue).
Wia, the Supreme Court of Guam declined Further, in Win, declined to answer answer whether whether "the most
conflicts are liva egregious" conflicts waivable through b le t hr ou gh ssilence, ilence, but found that, in that case, the si1ence-assilence -as-
waiver rule applied because rule applied because counsel counsel had aware of the conflict and waited over a year to had been aware
object. Id 1 Id atat1130.
like in Here, like m Win, waited over Wia, the OAG wa over aa yea year to file r to file its its fir first objection to st objection to Judge Judge
Tolentino. olentino. The T he OAG was aware aware of of all all the the facts facts regarding regarding Judge TTolentino's and Moylan's Moylan's
relationship by relationship by January January 2023, 2023, yet yet waited until May 1, 2024 to file its waited until its first first objection to Judge
Ybanez. Further, Tolentino in Ybanez. Further, the the OAG OAG continues continues to to proceed proceed in a number of of cases before Judge
without objecting. Thus, the Court finds that the silence-as-waiver Tolentino without silence-as-waiver rule applies and the
OAG waived OAG waived its its ability to object to Judge Tolentino based on his relationship with Moylan.
not answer The Court need not answer whether whether Judge Judge Tolentino Tolentino isis disqualified disqualified from from hearing hearing matters
if he involving Moylan because even if he is, is, the the OAG OAG has has waived waived its its right right to to object.
object. Therefore, Therefore, the
Court denies OAG's Objection denies the OAG's Objection on on the the basis basis that itit was was not not brought brought at at the the earliest earliest practicable
opportunity.
CONCLUSION
For For the the aforementioned aforementioned reasons, the Court hereby reasons, the hereby DENIES the the OAG's OAG's Objection.
Consequently, Judge Judge Tolentino Tolentino may continue continue to to preside preside over the above-captioned matter.
S0 SO ORDERED AU AUGG 2 ORDERED:1 - - - 29g £624 2024 ------
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