People v. Perez

• Court: Superior Court of Guam
• Decided: August 29, 2024
• Docket: CF0474-24
• Status: Unknown

Opinion

FI LLED 1 CUE%§€ GFCOURT CLERK OF CSGR? 2 2 202~ AUG 20211 29 29PMPH5:5:11 AUG II 3 SUPERIOR COURT SUPERKBR 4 OFGUAM GF GUAM _o...._

6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, GUAM, ) CRIMINAL CRIMINALCASE CASENO. CF0474-24 NO.CF0474-24 )) 8 ) 9 vs. )) DECISION AND ORDER DENYING DENYING ) STATEMENT OF THE OAG'S STATEMENT OF 10 RANDY RANDY JOHN JOHN PETRUS PEREZ, )) OBJECTION OBJECTION 77 GCA GCA §§6107 6107 DOB: DOB:10/06/1996 10/06/1996 ) AND AND MOTION TO DISQUALIFY DISOUALIFY 11 11 Defendant. )) 112 ________________))) 13 13 INTRODUCTION 14 14

15 15 This matter matter is before the is before the Honorable HonorableMaria MariaT. on the Cenzon on T. Cenzon the Office of the Office of Attorney the Attorney

16 16 General's (the "Office General's (the the Attorney ofthe "Office of Attorney General" General" or the "OAG") or the "OAG") Statement of Objection Statement of Objection 77 GCA GCA §

17 17 6107 and Motion 6107 and Motion to Disqualify Disqualify (the "Obj section")filed "Objection") filed on 19, 2024, July 19, on July by Acting 2024, by Acting Chief 18 18 Prosecutor Gloria Gloria Rudolph Rudolph(hereinafter (hereinafter"Chief "Chief Rudolph"). OAG objects Rudolph"). The OAG to Judge objects to Alberto E. Judge Alberto 19 19 Tolentino's (hereinafter (hereinafter "Judge to preside competency to "Judge Tolentino") competency over the preside over above-captioned the above-captioned 20

21 matter under77GCA matter under GCA §§ 6105 6105 and requests his and requests hisdisqualification disqualification pursuant to77GCA pursuant to GCA § 6107. 6107.

22 Having considered considered the the Objection, the Answer, the the Response, as the Response, as well as applicable the applicable 23 statutes andcase statutes and caselaw law and andthe the relevant relevantportions portionsof of the this Court issues record, this the record, the following issues the following 24 24 Decision Decision and Order OrderDENYING DENYING the the Office Officeofofthe theAttorney AttorneyGeneral's to disqualify requestto General'srequest Judge disqualify Judge 25

26 Tolentino and reassign Tolentino and this case. reassign this 26

People People v. Randy John Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision and Decision and Order Denying the Order Denying OAG's Statement the OAG's of Objection Statement of Objection 77 GCA GCA § § 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 1 of23 of23 1 FACTUAL BACKGROUND PROCEDURAL AND FACTUAL 2 A. The The Brief BriefProcedural History of Procedural History thisCase ofthis andObjection Caseand to Judge Objection to Tolentino Judge Tolentino 3 Assignment. Assignment.

4 On On July 8, 2024, 2024, Defendant DefendantRandy RandyJohn "Defendant") was charged via (the"Defendant") Perez(the PetrusPerez JohnPetrus 5 . . . . . Maglstrate Magistrate Complaint with wlth Fraudulent Dlsplayof Fraudulent Display Llcense Plate (As of a License 3rd Degree (As aa 3rd and Degree Felony) and 6 6 appeared before Judge Benjamin before Magistrate Judge C. Sison, Jr. Benjamin C. for a Magistrate's Jr. for On July Hearing. On Magistrate's Hearing. 10, July 10, 7 7 2024, the case 2024, the case was was assigned, assigned, pursuant pursuantoto77GCA GCA §§ 4103, to Judge 4103, to Tolentino. Ntc. Judge Tolentino. Ntc. of ofJudge Judge 8

9 Assignment Assignment (Jul. (Jul. 10, 10, 2024). 2024). On July 19, On July 2024, the 19, 2024, OAG filed its Objection. On theOAG 2024, 26, 2024, July 26, On July

10 the Grand Jury Juryreturned returnedaaTrue TrueBill indicting the Defendant of the charge of Bill indicting Fraudulent Display ofFraudulent 11 11 of A License of Plate (As License Plate 3rd Degree (Asaa 3rd Degree Felony). (Jul. 26, 2024). On Felony). Indictment (Jul. On July July29, 2024, Judge 29, 2024, 12 12 Tolentino filed filed his his Answer Answer to to Statement Statement of Objection. Ans. To To Stmt. Stmt. of 29, Objection (Jul. 29, of Objection(Ju1. 13 13

14 14 2024) 2024) (the "Answer"). "Answer").On OnJuly July30, 2024,this 30,2024, thisCourt Courtwas wasdesignated designated as as the the Recusal Judge to rule Judge to mle

15 15 on the Objection. Nth. Ntc. of of Assignment Assignment of ofRecusal Recusal Judge Judge (July (July 30, 30, 2024). On August 2024, 13, 2024, August 13, 16 16 the People Peoplefiled filed a "Response toJudge "Responseto Tolentino'sAnswer JudgeTolentino's toStatement Answerto ofObjection Statementof Objection77GCA GCA 17 17 [sic]"(the [sic]" (the"Response"). "Response").Response ResponsetotoJudge Judge Tolentino's AnswertotoStatement Tolentino'sAnswer ofObj Statementof action 7 GCA Objection GCA 18 18 (Aug. (Aug. 13, 13, 2024). 2024). Defendant Defendant has has not joined in the People's nor otherwise Objection nor People's Objection sought to otherwise sought 19 19

to 20 disqualify Judge Tolentino. Judge Tolentino.

21 1. The 1. TheBasis Basis of of OAG's Objection. OAG's Objection. 22 22 The gravamen of the OAG's gravamen of OAG's Objection Objection isisthat that Judge Judge Tolentiho Tolentino is disqualified from is disqualified 23 presiding over all cases involving the cases involving the Office Officeofofthe theAttorney AttorneyGeneral Generalbased basedupon mandate of the mandate upon the 24 25 7 GCA §§6105(a) 7 GCA 6105(a) requiring the judge requiring the judge to to "disqualify "disqualify himself himself .... in in any any proceeding proceeding in in which which his ... 25

26 26 impartiality might reasonably impartiality might reasonablybe bequestioned questioned......" Objectionatatp.p.22(citing " Objection (citing77GCA GCA§§6105(a)). The The

27 27 OAG OAG alleges alleges that that "knowing "knowing all allthe thefacts factsand andunderstanding understanding the the context Judge involving Judge context involving 28 28 Tolentino's history Tolentino's history of ofdisqualifying disqualifying himself himself where where the the AG AG was was involved, clearthat involved, ititisisclear Judge that Judge

People People v. v. Rana§/ John Petrus Randy John Petrus Perez, Criminal Criminal Case Case No. CF0474-24 Decision and Order Decision and Order Denying Denying the the OAG's OAG' s Statement Statement of of Objection Objection 7 7 GCA Disqualify to Disqualify Motion to andMotion 6107 and § 6107 GCA § Page Page 2 of23 1 Tolentino is a disqualified judge judge in any any case casewhere wherethe theAG AGMoylan Moylan is is involved." involved." Objection Objection at at p. 2 5. Other Other than Judge Judge Tolentino's Tolentino's past sua sue sponte spongerecusals recusalsbased basedupon uponAG AGMoylan's Moylan's biological 3 relationship to his relationship to his stepchildren stepchildren- -the thelast lastof ofwhich whichwas wasnearly nearlytwo twoyears yearsago ago- - the the OAG OAG alleges 4 5 no specific specific facts, facts, asserted asserted by someone with with personal knowledge of ofsuch such facts, which which purportedly 5

6 6 invoke the the provisions provisions of ofSection 6105. 1 Instead, Section6105.1 Instead, the the Objection Objection only iterates the the finding finding inPeople

77 v. v. Taitingfong, Taitingfong, et al., Superior Superior Court Court Criminal Criminal Case Case No. No.CF0024-24 CF0024-24 (June (June 4, 4, 2024)(Iria1te, 2024)(1riarte, J.) J.) that 8 Judge Tolentlno was Judge Tolentino was disqualified disqualifiedininthat thatcase case based based upon upon factors considered considered in in that particular case. 9 Moreover, Moreover, the the "Verification" "Verification"executed executedby byChief ChiefProsecutor ProsecutorRudolph Rudolphpurporting purporting to to be be "true "true and and 10

111 correct" correct" also also disavows disavows the the accuracy accuracy of "factual "factual matters matters averred averred on information and belief." information and belief."

12 12 Objection Objection at at p. 8. 13 Nevertheless, the the Objection identifies two purportedly disqualifying factors, purportedly disqualifying factors, the the first first of 14 14 which places the blame blame squarely squarely upon the Superior upon the Court of Guam Superior Court Guam and and the the second second upon upon a 15

"familial relationship" relationship" between between Judge Tolentino and Judge Tolentino and Attorney Attorney General General Douglas Douglas Moylan Moylan 16

17 17 (hereinafter "Attorney General Moylan," "Mr. "Mr. Moylan" Moylan"or or"Moylan") "Moylan")which whichpurportedly purportedly requires requires

18 18 Judge Tolentino to Judge Tolentino to recuse recusehimself, himself,specifically: specifically: 19 (1) (1) The Superior Superior Court Court should should have prevented prevented Judge Tolentino from Judge Tolentino 20 handling mattersinvolving handling matters involving the the Attorney Attorney General General of Guam, Guam, as he he had had previously disqualified previously disqualified himself sue sponge, from sua sponte, from all matters matters involving 21 Douglas Douglas B. B. Moylan Moylanpursuant to 7 pursuant to 7 GCA GCA§§6105 6105 and and 6106, 6106; and and 22 (2) (2) The familial familial relationship relationship between between Judge Judge Tolentino Tolentino and and Attorney Attorney 23 General Moylan which constituted Moylan which constituted the grounds grounds for Judge Tolentino's sue for Judge Tolentino's sua sponge sponte disqualifications disqualifications and have have not changed. changed. [sic] [sic] 24 Objection Objection at p. 2 (emphasis inoriginal). emphasis in original). 25

27 11 The The Court finds finds it significant that that the the allegations allegations purportedly purportedlygiving giving rise rise to to a conflict conflict are only advanced advanced by by Acting 28 ChiefProsecutor Chief Prosecutor Rudolph Rudolph and that thatnonoDeclaration Declaration made madeunder underpenalty penaltyofofperjury perjurybybyAttorney AttorneyGeneral GeneralMoylan Moylan-wh - who is the only individual other than Judge JudgeTolentino Tolentino who who would would have have firsthand firsthandknowledge knowledge of of any any ongoing ongoing "close "close personal persona relationship" between between himself himselfand and Judge Tolentino -- Judge Tolentino - was submitted to provide submitted to provide a factual factual basis basisfor for the the disqualification disqualification,

People People v. v. Randy Randy John Petrus Petrus Perez, Perez, Criminal Case No. CF0474-24 CF0474-24 Decision and Decision Order Denying and Order Denyingthe theOAG's OAG's Statement Statementof Objection 77GCA of Objection GCA § §6107 6107 and Motion to and Motion to Disqualify Disqualify Page 33 of of23 1 Citing Citing to to the the Guam Guam Supreme Supreme Court case ofSan case of San Agustin v. Superior Court Courtof Guam, 2 the ofGuam,2 2 OAG OAG posits, posits, "the "the Superior Superior Court Court must must align its process for assigning judges to assigning judges to the the record record of a 3 prospective judge's history of ofdisqualification." disqualification." Objection Objection at at pp. pp. 6-7. 6-7. In In short, OAG argues short, the OAG argues 4 that, assigning cases that, in assigning casesto tojudicial judicial officers, officers, the the Superior Superior Court Court of ofGuam Guam should disregard multiple multiple 5

6 provisions of ofthe the Guam Guam Supreme Supreme Court's Court's administrative administrative rule, rule, including the "case assignment" including the assignment"

7 rule rule and and the the rule rule governing the the disqualification disqualification of aa judicial officer3 merely judicial officers merelybecause because Judge Judge 8 Tolentino had routinely routinely recused refused himself in cases cases involving Mr. Mr. Moylan Moylan through through October October 2022 2022 9 and before the and before the latter latter assumed his elected assumed his elected office office as as Attorney Attorney General General in in 2023. 2023. By further further 10

111 implication, implication, the the OAG OAG asks asks this this Court Court to to find find that that the the Superior Superior Court Court should should have ignored the the

12 12 substantive andprocedural substantive and provisions of disqualificationprovisions proceduraldisqualification of 7 7 GCA GCA §§ §§6105 6105 and and 6106 6106 and and further further 13 omit Judge Judge Tolentino from the random assignmentof random assignment ofcases caseswhich whichinvolve involve the the OAG OAG (including 14 criminal cases) becausethe cases) because thejudge judgepreviously previouslyrecused reused himself himself from from presiding presiding over over cases cases in which 15 15 Mr. Moylan Moylan represented represented aa defendant defendanton onthe the grounds groundsthat thatMr. Mr.Moylan Moylan"is "is the the father father of of [his] [his] 16

17 stepchildren." Obi action at p. Objection p. 2.

18 2. Judge Judge Tolentin0's Tolentino's Answer. 19 19 On July 229, On July 2024,Judge 9, 2024, JudgeTolentino Tolentinofiled filed his Answer to Statement of Obi section("Answer"). Objection ("Answer") 20 His response response is lengthy and and detailed, and and the Court finds the following followingresponses, responses, made made under under 21 22 penalty of ofperjury, perjury, particularly relevant relevant to to this this Court's Court's recusal recusal determination: determination: 22

24 2 25 25 2 2024 2024 Guam 2. Curiously, the firstfirst "factor" has less "factor" has less to do do with with Judge Judge Tolentino's Tolentino'sactions actionsororpurported purported'inaction inaction and an seems to be more ofof an an action action to compel compel the the Superior Superior Court to "do" "do" an an act act -- that that is, is, omit omit Judge Tolentino from from the th 26 procedures of case assignment procedures of the the administrative administrative rule rulebased basedupon uponaadisqualifying disqualifying factor. factor. This This would would seem to be more appropriate under a writ proceeding, proceeding, possibly possibly before before the the Guam Supreme Court, Court, ironically akin akin to the writ proceeding 27 described in described in detail by the Guam Supreme Court in San Agustin, the OAG's principal case. OAG's principal See, San case. See, San Agustin Agustin at ,r,r at W 35- 41. 3 28 3 Administrative Rule Administrative Rule No. 24-001 (March 6, No. 24-001 6, 2024). 2024). Section Section III III ofofAR24-001 AR24-001establishes establishes the the procedure procedure for for the th assignment of cases. assignment cases. Section IV.A. addresses the IV.A. addresses the assignment assignment of cases cases upon the disqualification of aa judge judge and and the th assignment of of the recusaljudge. judge.

v. Randy People v. John Petrus Rana John Petrus Perez, Criminal Case No. No. CF0474-24 Decision Decision and Denying the and Order Denying the OAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and Motion Motion to to Disqualify Page 4 of Page of23 1 1 1 6.6. That 11 That at at Mr. Moylan's Moylan's request, request, aa meeting meeting between between him him and and the the undersigned, the undersigned's undersigned, the undersigned's chamber chamberstaff, staff, the the Administrator Administrator of of the 2 Courts, and Mr. Courts, and Mr. Moylan's Moylan's transition transition chairperson, chairperson, Mr. Mr. Wilfred Wilfred Aflague, 3 occurred in December 2022, 2022;

4 1 7. That 117. That at atthis thismeeting, meeting, Mr. Moylan Moylanassured assured me me and and the other members in attendance that attendance thathe heperceived perceivedno no conflict conflict in his election as the Attorney 5 General and thetheprosecution prosecution ofof criminal cases before before the the undersigned. It was 6 agreed that the circumstances circumstances underlying underlying my recusal in matters my recusal matters that that Mr. Moylan was Moylan was aa lawyer lawyer nono longer longer existed, existed, to to wit: wit:that thatduring during mymy term term as as the 7 Magistrate judge I had had routinely routinelyrecused myselffrom reused myself from all all matters matters where Mr. 8 Moylan was Moylan was thethe attorney attorney of ofaa party party before beforememeon onthe the basis basis that that he was the father of my father of my minor minorstep-children step-children andand that that the the minor minor step-children step-children were 9 members of and resided in the household members household maintained maintainedby bymeme and andmymy wife wife and that that as asofof even even date, date, both step-children have now reached majority and and 10 adulthood andand have have been residing residing at their own own residences residences inin Guam Guam and in 11 1 the U.S. Mainland, Mainland;

12 12 18.8.That 'H ThatMr. Mr. Moylan Moylan never never made made an appearance as aalawyer appearance as lawyer in this case, case; 13 13 1 9.9.That 'H Thatneither neitherMr. Mr.Moylan Moylan nor northe the Office Office of of the the Attorney Attorney General General hadhad 14 ever ever challenged challenged or or objected objected to to me me presiding presidingover overthis thiscase case until until the the instant instant Statement of Objection Statement of Objection and andMotion Motion to to Disqualify Disqualify filed herein, herein; 15 15

16 1 12. 11 12.That Thatadditionally additionallymovant movanthas hasnot notexplained explainedwhy why or how the fact that Mr. Moylan Moylan isis the thebiological biologicalfather fatherofofthe theundersigned's undersigned'sstepchildren stepchildren 17 17 requires disqualification disqualification of ofthe the undersigned, undersigned;

18 1 14. 11 14.That Thatmy mywife wife Doris Doris L.G. L.G. Tolentino and and Attorney General General Moylan were divorced divorced ononJune June 13, 13, 1997, and that 1997, and thatthere therewere were two minor children children at 19 19 the the time of of the the dissolution dissolution of of marriage, marriage, to wit: wit: Brandon Brandon (born (born 1990) 1990) and and 20 Angela (bam Angela (born 1992); 1992);

21 1115. That my 115. That my wife wife and and I have have been been together together since since 2001 2001 and that that we we were married married civilly in in 2005 2005 and and eventually in in the the Roman Roman Catholic Catholic Church Church in 22 December December2023 2023;, 23 1 17. That 1117. Thatsince sincemy my wife wife and and I have been together I have never observed 24 lV[r. Moylan and Mr. Moylan and my my wife wife involved involvedin inany any sense sense in in co-parenting the children of of their their marriage marriage as as the the children children have have been been raised raised and and provided with 25 protection and care to ensure ensure their healthy healthy development development into into adulthood, adulthood, 26 primarily primarily by by my my wife wifeand andme, me,and and that that they they are are in in fact fact adults adults able to conduct and make maketheir theirown owndecisions decisionsininlife; life, 27

28 1ii 18. 18. That That based based upon upon the the foregoing averments, averments, the fact that that Attorney Attorney General Moylan is General Moylan is the the biological biological father father of ofthe theundersigned's undersigned's step-children step-children

People People v. v. Randy John Petrus Randy John Petrus Perez, Perez, Criminal Case No. CF0474-24 CF0474-24 Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 and Motion 6107 and Motion to to Disqualify Disqualify Page 5 of23 of23 1 provides provides no no basis for disqualification basis for under77 GCA disqualification under GCA §§ 6105(b) 6105(b) or or that that the the undersigned's undersigned's "impartiality might reasonably reasonably be questioned" as required questioned" as required 2 under subsection Linder subsection(a); (a), 3 ~ 19. 'H 19.That That"[u]nder subsection 6105 "[u]nder subsection 6105 (a),(a), what matters matters isis not not "actual "actual bias" bias" 4 appearance of but "the appearance but of bias." Van Dex bias." Van Dox at at~ 1] 32 32 (citing Dizon Dizon v. v. Super. Super. Ct. (People), 1998 guam 33~#ll1010n.n.3).3).The 1998 Guam Theappearance appearanceof ofbias biasisisjudged judged from from 5 the standard of the standard "reasonable person" of a "reasonable person" who knows all the who knows the facts, facts, and and 6 understands understands the "contexts of the the"contexts the jurisdictions, jurisdictions, parties, parties, and and controversies controversies including such involved," including such "realities of ofthe the Guam Guam judicial system" system" as as the 7 relativelysmall relatively smallnumber numberof oflawyers lawyers ininthetheGuam Guambar bar and "the nature of Guam and "the families." Id (citationomitted) Id (citation omitted). 8

9 ~ 30 1] .... The recusal 30....The recusal judge judge [in People v. Taitingfong.] Taitingfong,l did not not carefully carefully examine or consider the the realities realities that thatmy my wife and Mr. wife and Mr. Moylan have been 10 close to divorced for close to twenty-seven twenty-seven years years and and that children of their that the children their 11 marriage marriage areare adults adultsliving living on on their theirown own and andwellwell over over the age of majority the age that no and that no reasonable reasonable person who knows all all the the facts facts and and understands understands the 12 12 contexts ofofthe the jurisdiction, parties parties and controversies involved involved inin the the Guam Guam judicial system would conclude judicial conclude that that there exists exists anan appearance appearance of bias bias 13 disqualification in requiring my disqualification in this matter. .... this matter. 14 14 W66 -9,9,12, Answer at~~ 12,14, 14,15, 15, 17 17 - 19, 19, 30. 15 15 3. The ThePeople's People'sResponse. Response. 16 16

17 On August 13, 13, 2024, 2024,the theOAG OAG filed filed an unsolicited unsolicitedPeople 's Response to Judge People's Judge Tolentino 's 's

18 18 Answer to Statement Objection 77 GCA [sic] of Objection Statement of [sic] (the (the "Response") "Response") arguing arguing that that (1) (1) the the OAG's 19 19 Objection Objection is is timely timelybecause because itit was was filed filedand and served served upon upon Judge Judge Tolentino on on July July 19, 2024-- nine 19, 2024 20 days after (9) days after the the judge judge was was assigned assigned to preside over to preside overthis thismatter matter on on July July 10, 10, 2024, 2024; and (2) that that 21 22 Judge Tolentino is Judge Tolentino is biased per se biased per Se pursuant pursuantotoCalifornia CaliforniaCode Codeof of Civil Civil Procedure CCP §§ 170.1, Procedure CCP 170.1, 22

23 23 which "specifically "specificallystates states that that judges married to the married to the ex-wives ex-wives of of lawyers lawyers appearing appearing before them them

24 24 are disqualifiable." are disqualifiable." Response Response at at p. p. 3. Response does not address 3. The Response address or or contest contest any any of the the 25 averments in avennents in Judge Judge Tolentino's but simply Tolentino's Answer, but simply repeats repeats that that "given the significant "given the significant and and 26 continuing relationship continuing relationshiphe hehas haswith withAG AGMoylan's Moylan's ex-wife and children" ex-wife and children" he is disqualified from 27 28 28 all cases involving General Moylan involving Attorney General Moylan and, and, therefore, therefore, the theOffice Office of the Attorney General.

People v. Ranaj/ Randy John John Petrus Petrus Perez, Perez, Criminal Case No. No. CF0474-24 Decision and Order Decision and Order Denying Denying the the OAG's OAG's Statement Statement of ofObjection Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 6 of23 of23 1 DISCUSSION AND AND ANALYSIS ANALYSIS 2 A. The Law Law Governing Governing Judicial Judicial Disqualification Disqualification Is Set Forth in Guam Guam Statute and In Statute and 3 the Model Model Code Code of Judicial Conduct.

4 1. Guam GuamStatutory Statutory Mandates. Mandates. 5 Judicial disqualifications Judicial disqualifications are are governed governed by by the the substantive rules of substantive rules of 77 GCA GCA §§6105 6105 and and the the 6 procedural rules of procedural rules of 77 GCA GCA §§ §§6106 6106 and and 6107. The relevant 6107. The relevant portion portion of ofthe the disqualification disqualification statute statute 7 is Section Section 6105(b)(5), 6105(b)(5), which which requires requires that: that: 88

9 (b) AAJudge Judge shall shall also also disqualify disqualify himself himself or herself herself in the the following following circumstances, butif,if, following circumstances, but following complete disclosure to all parties disclosure to parties in in the 10 proceeding of ofthe the reasons reasons for his or her disqualification, all parties agree to 111 having having the Judge continue to Judge continue to sit sit in the proceedings, proceedings, he or she she need need not not disqualify himself or herself: herself: 12 12 (5) Where Where hehe or she she or hishis or or her her spouse, spouse, oror a person person within the third third 13 degree of relationship degree relationship to either of of them, them, or the the spouse spouse of such 14 person: (A) (A)isisaaparty party to to the the proceeding, proceeding, or or an officer, director, an officer, director, or or trustee trustee 15 of ofaa party, party; (B) (B)isisacting acting as as aa lawyer lawyer in the proceeding ....4 in the 16

17 17 Correspondingly, Section Section 6106 6106 compels compels aa judge judge to to disclose disclose aa disqualification disqualificationenumerated enumerated under under

18 610515 6105: 5 19 19 Whenever a Justice Justice oror Judge Judge shall shallhave have knowledge knowledge of of any any fact or facts facts 20 which, under the the provisions of of6105 6105 of ofthis Chapter, disqualify him him or or her to sit sit or or act act as such in any any action action or or proceeding proceeding pending pending before him or her, 21 it shall shall bebe his his or or her her duty duty toto declare declare the the same same inin open open court court and and cause cause a memorandum thereof thereof to be entered in the minutes. minutes. It shall be the the duty duty of of the 22 clerk clerk to transmit transmit forthwith forthwith aa copy copy of ofsuch suchmemorandum memorandum to each each party or his 23 or or her attorney who shall have appeared in such suchaction actionororproceeding, proceeding, except such parties as as are are presented presentedin inperson personor or by by attorney attorney when the declaration 24 is made. made. 25

28 44 77 GCA GCA §§ 6105(b)(5) 6105(b)(5) (emphasis (emphasis added). added). 55 77 GCA GCA §§ 6106 6106 ((emphasis added). added).

People v. v. Randy John Petrus Perez, Criminal Case No. CF0474-24 Decision and Decision Order Denying and Order Denying the the OAG's OAG's Statement Statement of ofObjection Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 7 of 23 of23 1 Ifaa judge If judge fails failstotodisclose discloseaadisqualifying disqualifyingfactor factorunder underSection Section6105, 6105,then, then, pursuant pursuant to 2 Section 6107, Section 6107, any party the action party to the action who who has has appeared appeared in the the case case may may raise raise the the objection to 3 competency. 6InInthis competency thisregard, regard,Section Section6107 6107provides, provides,in inrelevant relevantpart, part, as follows : as follows: 4 Wheneveraa Justice Whenever Justice or Judge Judge whoshall be disqualified disqualified under under the the provisions provisions 5 of this of this Chapter Chapter to sitsit or or act act as as such such inin any any action action or or proceeding proceeding pending pending 6 him or before him or her her neglects or fails fails to to declare declare his his or or her her disqualification disqualification in the manner the manner provided provided by this this Chapter, Chapter, any any party party toto such such action action oror 7 proceeding who has appeared therein therein may present to the the court and andfile file with 8 clerk aa written the clerk written statement statement objecting to to the the hearing hearing ofofsuch such matter matter or any trial of any trial of any issue issue of of fact fact or or law lawin insuch such action action oror proceeding proceeding before before such such 9 Justice Justice or Judge, Judge,andandsetting settingforth forth the the fact or facts constituting constituting the ground ground of of the the disqualification disqualification of ofsuch such Justice Justice or Judge. Judge. Copies of of such such written written 10 statement shall statement shall forthwith forthwith be served by the the presenting presenting party on on each each party, 11 or his or or her her attorney, who has has appeared in the the action or proceeding and and on the Justice Judgealleged Justice or Judge alleged in such such statement statementto tobe bedisqualified. disqualified. 12 Within Within ten ten (10) 10) days days after after the the service service ofofsuch such statement statement as above above provided, 13 or ten (10) 10) days days after the filing tiling of ofany any statement, statement, whichever is later in time, 14 the Justice Justice or orJudge Judgealleged allegedtherein thereinto tobe bedisqualified disqualified may mayfile file with the clerk his or her consent in writing that the action or proceeding continue without 15 him or her, or may may file with with thethe clerk clerk his his or or her her written written answer answer admitting or denying any any or or all of ofthe the allegations allegationscontained containedininsuch suchstatement statement andand setting 16 forth any additional additional fact or facts material or relevant to the question of his 17 or her her disqualification. disqualification. The The clerk shall shall forthwith transmit transmitaa copycopy of the Justice's or Judge's consent or answer to each each party party or his or or her her attorney attorney 18 who shall have appeared in such action action or or proceeding. proceeding. Every Every suchsuch statement statement and and every every answer answer shall shall be verified verified inin the the manner manner prescribed prescribed for the the 19 verification of pleadings. verification of pleadings. The statement of party objecting to the statement of a party objecting to the Justice Justiee 20 or Judge Judge onon the the ground ground of ofhishis or orher herdisqualyication disqualificationshallshallbe bepresented presented at the earliest the earliest practicable opportunity after his or or lier appearance and her appearance and 21 discovery of the facts facts constituting the ground ground of the Justice's or Judge's Judge's disqualyication, disqualification, and and in in any event event before before thethe commencement commencement of the the 22 hearing hearing ofofany issueof any issue offset fact in the action orproceeding proceedingbefore beforesuch such Justice 23 or or Judge. Judge.

24 No No Justice Justice or or Judge Judge who shall deny his or her qualification qualification shall shallhear hear or or pass pass upon the the question question of of his or her own disqualification, but in every case case the 25 question question of the th~ Justice's Justice's or or Judge's Judge's disqualification disqualification shall shall be be heard heard and and 26 determined determined by some I other other Judge. Judge. The Presiding Presiding Judge, Judge, or next senior senior Judge, if if itit isisthe thePresiding PresidingJudge's Judge's disqualification disqualificationthat that is is being being requested, requested, shall shall 27 make such 1 assignment within five (5) days after make such assi gnment within five (5) days after receiving receiving from the clerk 28 I

6 6 77 GCA GCA §6107 § 6107 (emphasis ( emphasis added). add¢d). i People Peoptelv. Ranaj Randy John John Petrus Perez, Criminal Criminal Case Case No. No. CF0474-24 CF0474-24 Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and Motion to and Motion to Disqualify Disqualify Page 8 of23 of23 1 the notice that the the statement statementof of disqualification has been filed. disqualification has case the case In the filed. In of of aa Justice's Justice's disqualification, disqualification, the the matter matter shall shall be be heard by the heard by Supreme the Supreme 2 Court constituted without Court constituted questioned Justice. without the questioned 3 If Ifsuch such Judge admits his Judge admits his or disqualification, or her disqualification, or her his or or files his her written or her 4 consent that thatthe theaction actionor Judge, or another Judge, before another proceeding be tried before or proceeding or fails to file file the the answer answer within ten (10) the ten within the allowed, or days allowed, (10) days or if it shall if it be shall be 5 determined after determined the hearing after the thathe hearing that he or she is or she the action or disqualified, the is disqualified, 6 proceeding proceeding shall shall be beheard heard and and determined Judge of the Superior another Judge determined by another Court who is is not not disqualified. other Judge Such other disqualified. Such shall be Judge shall assigned in be assigned the in the 7 same manner manner as as the the Judge Judgewho assigned to hear was disqualified was assigned who was hear the case initially. initially. 8

9 2. Model Judicial Conduct: CodeofofJudicial ModelCode Canon 3 Conduct: Canon

10 (the"Model Conduct7 (the Judicial Conducts ofJudicial the Model Code of Canon 3 of the that"[a] mandates that Code") mandates "Model Code") "[a] 11 11 judge shall shall perform performthe theduties dutiesofofjudicial officeimpartially judicialoffice anddiligently," impartiallyand and3E.(1 diligently,"and and )( d)(i) and 3E.(l)(d)(i) 12 12 (ii) (ii)of ofthe the Model Model Code's Code'sdisqualification disqualification factors mirrorthose factors mirror thoseof7 of 7GCA GCA§§6105(b)(5)(A) 6105(b)(5)(A) and and (B): (B): 13 13

14 E. Disqualification.

15 15 (1) (1) AAjudge judgeshall shalldisqualify disqualifyhimself himselfororherself herselfininaaproceeding proceedingininwhich which the the judge's impartiality impartiality might might reasonably reasonably be be questioned, questioned, including including but but not limited limited to to instances instances 16 16 where: where: 17 (d) (d)thethe judge judgeor orthe the judge's judge'sspouse, spouse, or or aa person person within tJ,ird degree of tl,e third witJ,in the of relationship* relationsl,ip to either of ofthem, them, oror the the spouse such aa person: ofsuch spouse of 18 18 (i) (i)isisaaparty party to to the the proceeding, or or an director or officer, director an officer, trustee of or trustee of a party; party, 19 19 (ii) (ii)isisacting actingasas aa lawyer lawyer in in the the proceeding, proceeding; .... 20 B.. B The The OAG OAGhas has waived waived its its right rightto to object object to to Judge Tolentino's qualification Judge Tolentino's qualification to preside to preside 21 over cases casesinvolving involvingthe theOffice Officeof ofthe theAttorney Attorney General. 22 22 As As highlighted, highlighted, above, above,Section Section6107 6107requires requiresthat that the statement of the statement party objecting to the of a party 23 Judge Judge on the the ground ground of his his disqualification disqualification shall shall be be presented the earliest "at the presented "gt practicable earliest practicable 24

26 26 77 The The ABA's ABA's Canon Canon ofofJudicial Judicial Ethics Ethics shall apply to and govern the conduct conduct of of the Superior Court of Guam. of Judges of 27 27 77 GCA § 6103. The Model GCA § 6103. The Model Code Code of of Judicial Judicial Conduct Conduct applicable applicable in in Guam Guam was was adopted adopted of Delegates House of the House by the by Delegates oof the American American Bar Bar Association Association onon August August 7,7, 1990, 1990, and amended amended on 6, 1997, August 6, on August August 10, 1997, August 1999, and August 10, 1999, 12 August 12, 28 2003. It is hereinafter referred referred to to as as the the "Model "Model Code." Code."

People People v. Randy John Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and andMotion Motion to to Disqualify Disqualify Page Page 9 of23 1 of the of the facts constituting the ground Q or her appearance and discovery Q opportunity after his Q. 2 . » . . . I Justlce's or Judge's Justice's Q disqualification, and in any Judge'sd1squa11ficat1on, event before any event the commencement before the of of the hearing of commencement of 3 any any issue issue of of fact fact in in the the action action or or proceeding proceeding before before such such Justice Judge." 7 GCA §§ 6107 Justice or Judge." 6107 4 (emphasis added). (emphasis The Guam added). The Van Dex Supreme Court in Van Guam Supreme has confirmed Dax has that statements confirmed that of statements of 5

6 presented at objection shall "be presented the earliest at the practicable opportunity after discovery of earliest practicable facts of the facts

77 ,r (Alcorn), 2008 Guam 7 1144. Ct. (Alcorn), Dox v.u Super Ct. Van Dax constituting the ground for disqualification." Van 8 Thus, the controlling Thus, Guam "[w]1th controlling law in Guam the statutory "[w]ith respect to the provision requiring statutory provlslon that requmng that 9 disqualification be disqualification urged at the 'earliest be urged practicable opportunity," 'earliest practicable 'clear that failure opportunity,' the intention is 'clear 10

11 11 to comply with withthe the provision provision constitutes constitutes a waiver.'" Id. ,r 45(quoting waiver."' Id145 (quoting Caminetli v. Pac. CaminettiVS Ins. Mut. Ins. Pay. Mai.

12 Co. o f Cal., o . of 930, 933 139 P.2d 930, f a l 139 (Cal. 1943)(emphasis added)). 933 (Cal. A finding added)). A timeliness should be finding of timeliness

13 13 ,r (citing Eagle Maint. of justice. Id. 1145 construed liberally in the interest of Mains. & Co. v.v Super Supply Co. & Supply 14 Ct., 16 Cr., Rptr. 745, 16 Cal. Rptr. 747 (Dist. 745, 747 Ct. App. (Dist. Ct. 1961)).AAtimely App. 1961)). statement of timely statement objection is of objection made "prior is made 15 15

16 the challenged judge in the matter." Id. to any hearing before the ,r (citing Hollingsworth, Id 1]46 Hollingsworth, 236 Cal. 16

17 17 Rptr. at 195-96). Van Rptr. Dox also Van Dax Panah, where the court also cites to People v. Pariah, disqualification court held aa disqualification

18 18 because the facts untimely because case were known facts of the case in early known in September, but the moving early September, party moving party 19 19 of trial in November to move waited until the eve of for disqualification. move for ,r (citing People v.u disqualification. Id. 1146 20 Panah, 107 Pariah, 790, 824). 107 P.3d 790, 21 People v. More recently, in People 17, the Guam Wia, 2020 Guam 17, u Win, Supreme Court Guam Supreme applied the Court applied 22 22

23 "silence-by-waiver" rule Union, Inc. rule adopted in San Union, v. Arnold, 2017 Guam 10, Inc. v. that 10, and held that

24.. 24 to waive the agree to expressly agree parties must expressly to mean that the parties "agree" to interpreting "agree" than interpreting "[r]ather than 25 judge's disqualification, we held remaining silent held that remaining constitutes waiver, silent constitutes at least in the context of waiver, at 26 26 77 GCA GCA §§ 6l05(a), 6105(a), "[t]o "[t]o avoid avoid the the possibility possibility of ofparties parties '1[ying] 'l[ying] in in wait, wait, raising raising the recusal issue 27 28 only only after learning the after learning the court's court's ruling ruling on on the the merits.'" merits.' " Id. Id (quoting Phillips Phillis vv. Amoco Amoco Oil Oil Co., Co., 799 28

People v. Randy John Petrus Perez, Perez, Criminal Case Case No. CF0474-24 Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 10 of23 Page 10 of23 1 F.2d 1464, F.2d 1464, 1472 1472 (11th Cir. 1986), cert. (nth Cir. denied, 481 U.S. 1016 (1987)). cert. denied, Thus, Guam allows for the (1987)) Thus, 2 waiver of of Section 6105(b) conflicts by the the silence of the party party who who sits sits on on his his right right to obi et. Id to object. Id 3 at1I 29.88 atif29. 4 In his Answer, Judge Tolentino raised the issue of of timeliness, timeliness, stating stating "[t]hat "[t]hat neither Mr. neither Mr. 5

6 of the Attorney General had ever Moylan nor the Office of ever challenged challenged or or obi objected acted to to me presiding

7 this case over aNs case until until the the statement statement of objection and motion ... "Answer motion to disqualify..." ,r 9. That is Answeratat119. 8 to say, the to say, and Mr. the OAG and Mr. Moylan Moylan knew knew since since their their meeting meeting in in December December 2022, 2022, that that Judge Judge 9 Tolentino Tolentino would be assigned assigned to preside preside over over criminal criminal cases cases which Mr. Moylan, which Mr. Moylan, as as the Attorney 10

11 ll of the General of Guam, would bring in the name of the People People of of Guam. Guam. Despite Despite its its urging urging that the

12 12 Court apply the reasonable person standard who who has "knowledge ofall "knowledge of all the the facts," facts," it is significant 13 that the the OAG does not challenge Judge Tolentino's description Judge Tolentino description of of aa meeting meeting held between them 14 and their staff in in December, December, 2022, 2022, where where the judge and Mr. the judge Mr. Moylan Moylan discussed discussed the precise question 15 15

of whether a conflict would exist of exist "in [Mr. [Mr. Moylan's] election election as as the Attorney General and the 16

17 17 prosecution osecution of of criminal cr imina l cases ca ses before befor e the undersigned" the under signed" and "[i]t was deter a nd "[i]t determined mined that the the

18 underlying my circumstances underlying my recusal recusal in in matters that Mr. Moylan Moylan was aa lawyer lawyer no no longer longer existed." existed." 19 19 Answer at ,r,r W6, 6, 7. 20 Thus, it is uncontroverted that, since 2022, Mr. Moylan and the OAG knew knew that that Judge 21 Tolentino is assigned Tolentino assigned by the Superior Court of of Guam, Guam, applying the the Administrative Administrative Rule, to preside 22

23 over criminal cases which are are brought in in the the name name of the People of Guam by the OAG, through

24 Attorney General Moylan. Based upon the "silence-by-waiver" rule rule most most recently recently reiterated reiterated in 25

27 s8 See also, also, Clarette Charette v. Charette, Clarette, 60 A.3d 1264, 1264, 1270-1271 (Maine (Maine 2013) (judge party's brother-in-law to Gudge had hired a party's do construction construction work work for forhim himand and his his daughter daughter was close friends friends with with the the same party's daughter, opposing party should same party's 28 have raised anan objection based uponupon the the appearance appearanceofofimpropriety impropriety before before the court issued a judgment judgment unfavorable to him; the him, the appellate appellate court finding finding that that the the facts were were known known toto the the party becausethey they occurred occurred over over the thecourse courseofoftwenty- twenty seven years while while all allwere were living livingininthe the same same small community).

People People v. v. Randy Randy John Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and andMotion Motion to to Disqualify Disqualify Page 11 of23 Page 11 of23 1 Win, Wia, the OAG is barred from from complaining- Mr. Moylan first time in nearly two years since Mr. the first for the complaining - for Moylan 2 assumed that Judge office - that assumed office olentino isis disqualified Judge TTolentino because of disqualified because Mr. Moylan's of Mr. biological Moylan's biological 3 3 relationship to Judge Tolentino's stepchildren. 9 Tolentino'sstepchi1dren.9 4 Although Court finds that the OAG has waived the Court Although the any right waived any object right to obi JudgeTolentino's acttotoJudge Tolentino's 5

6 6 qualifications to qualifications preside over matters to preside in which matters in of the Attorney General and Attorney which the Office of

7 7 of to raise the issue of continues to or aa party, because the OAG continues People or the People represent the General Moylan represent 8 the "relationship" between Attorney General Moylan and Judge Tolentino/his 9 spouse/stepchildren in over fifty in over criminal cases fifty (50) criminal assigned to cases assigned Tolentino, the Court now to Judge Tolentino, 10

11 addresses the substance ofthe substance of Objection. the Obj action.

12 12 c. C. Judge Tolentino Tolentino is not not related related to to Attorney consanguinity by consanguinity eitherby Moylan either Attorney General Moylan or affinity affinity within withinany anydegree; degree; therefore, therefore, there there isis no relationshiptotodisclose norelationship under disclose under 13 13 Guam Law or the Law or the Model Code. 14 threshold question in determining The threshold determining whether Judge Tolentino whether Judge disqualified under Tolentino isis disqualified 15 15 Section 6105(b)(5)(A) or (B) 6105(b)(5)(A) or is whether he (or his spouse) is related within three degrees to a (B) is 16 16

17 17 party to the or to aa lawyer the proceeding or proceeding. A familial lawyer to the proceeding. relationship may familial relationship may be

18 established by consanguinity or affinity. If or affinity. consanguinity, it is If established by consanguinity, relationship by is aa relationship 19 19 affinity, itit exists blood, if established by affinity, ties of blood; between one spouse and the exists between of the the consanguinity of 20 other.1° Thus, "consanguinity" other. 10 Thus, "consanguinity" measures measures the the relationship relationship by by blood blood and and "affinity" measures the 21 11 22 relationshipby relationship marriage.11 bymarriage. 22

25 99 See, See,thisthisCourt's Court'sDecision Decision and Order Order Denying the OAOAG's'sStatement Statementof ofObjection Objectionand andMotion Motion to toDisqualify Disqualtfv inin People v. Ybanez, Ybanez, Superior Court of of Guam Criminal Case Case No. No. CF0447-23 (Jun. (Jun. 12, 12, 2024), 2024), which which rejects rejects the the Objection Objection filed file 26 therein by the OAG as procedurally defective. as procedurally defective. It is unknown whywhy the the OAG OAG fails fails to to acknowledge acknowledge or ordiscuss Ybanez discuss Ybanez, which reached which reached a diametrically opposed opposed conclusion to the decisions of the courts in Aguon Aguon and Taitingfong. Taitingfong. 27 27 10 10See, generally, 46 See, generally, 46 Am. Am. Jr.Jr. 2d 2d Judges Judges §§ 112 (Aug. 2024). 11 Id (citing Alabama State 11 Bal V. State, Id. (citing Alabama State Personnel Bd. V. Garner, 4 So.3d 545 (Ala. Civ.Civ. App. App. Ct. Ct. 2008)). 2008)). See See also,Suggs Suggs v. State, 28 51 N.E.3d 1190, 1190, 1194 (Indiana 2016) 2016) ("Related by marriage" is is commonly referred to as affinity, which is affinity, which is defined a defined as 'the 'the connection connection existing existingininconsequence consequence of ofmarriage marriage between betweeneach each of ofthe the married persons and the married persons kindred of the other. the kindred ItIt is is distinguished distinguished from consanguinity, which denotesdenotes relationship relationshipby blood."') (citation omitted). byblood."')

No. CF0474-24 People v. Randy John Petrus Perez, Criminal Case No. Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement Statement of ofObjection Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 12 of23 of23 l1 The disqualification provisions Section 6105 provisions of Section and Canon 6105 and of the Canon33 of bar a the Model Code bar 2 judge from presldlng judge over matters presiding over where the matters where judge or his the Judge spouse is wzthzn his spouse three degrees within three of degrees of 3 relationship (e.g., (e.g., consanguinity or affinity) consanguinity or affinity) to aa party in the party or a lawyer in the proceeding. proceeding.77 GCA GCA §§ 4 6105(d) provides 6105(d) that "[t]he provides that of relationship degree of "[t]he degree calculated according relationship is calculated the civil accordingtoto the civil law 5

6 system," 12 and system,"12 the Model in the defined in relationship" isis defined degree of relationship" "third degree and "third "great- the "great- as the Code as Model Code

7 grandparent, grandchild, great-grandchild, child,grandchild, sister,child, brother,sister, aunt,brother, uncle,aunt, parent,uncle, grandparent,parent, grandparent, grandparent, 8 nephew or nephew niece." 13 Neither or niece."13 origin blood or origin by blood related by are related wife are hiswife norhis Tolentinonor JudgeTolentino NeitherJudge 9 (consanguinity) nor by (consanguinity) marriage(affinity) by marriage General Moylan (affinity) to Attorney General as Mr. Moylan Moylan as does not Moylan does 10 fall under under any any of these relationships. relationships. 11 11

12 12 ofrelationship" Extending the "third degree of beyond that relationship" beyond which is that which the Model is contained in the Model

13 13 related by not related is not Moylan is General Moylan (marriage), Attorney General affinity (marriage), include relationship by affinity Code to include 14 affinity to either Judge Tolentino either Judge the judge's Tolentino or the spouse. The judge's spouse. "relationship" between The "relationship" Judge between Judge 15 15 Tolentino and Attorney General Moylan is best Attorney General illustrated by best illustrated the legal by the maxim of "ajinis legal maxim mei "ajjinis Mei 16 16

17 17 mini ajjinis" est mihi ajjinis non est ajfinis relative of "Arelative ajinis " or "A myrelative ofmy bymarriage relativeby marriage is my relative." is not my Suggs relative." Suggs

18 18 v. v. State, 51 N.E.3d 1190, 1194-1195(Indiana 1190, 1194-1195 2016)(quoting (Indiana2016) Ballentine's Law (quotingBallentine's Dictionary with Law Dictionary 19 Pronunciations 45 (3d Pronunciations 45 (ad ed. clearlystated, More clearly ed. 1969)). More in determining stated, in whether two determining whether persons are two persons 20 related by affinity, affinity, or ormarriage, relationshipdoes "therelationship marriage, "the not exist does not wheremore exist where than one marriage is more than 21 22 required to to establish establish it." v. State, it." Johnson v. 146, 147, 169 Tex.Crim. 146, State, 169 332 S.W.2d 321, 147, 332 322(Tex. 321, 322 (Tex. 22

23 Ct. Crum. App. 1960). Crim. App. JudgeTolentino Thus,Judge 1960). Thus, not related Tolentinoisis not toAttorney relatedto General Moylan Attorney General Moylan within

24 24 any degree degree of affinity affinity or or relationship. relationship. 25

26 26 12 See, Alabama State Personnel Bd., supra ("Thecivil Hz See, Alabama State Personnel Ba, supra ("The th begin the to begin kinship isis to ofkinship degreesof computingdegrees methodofofcomputing lawmethod civillaw 27 27 count count with one ofof the persons in question and proceed up to the common ancestor and common ancestor then down and then to the down to other person, the other calling it a degree for each person both ascending and descending. The number counted expresses the degree of number thus counted 28 because judge kinship.") (finding no duty to recuse because attorney in and attorney judge and case were in case not related were not within the required degree). related within 13 See Model Code, Attachment A 10 ("Terminology"). at p.p. 10 13 See Model Code, Attachment A at ("Terminology").

People People v. v. Rana§2 John Petrus Randy John Petrus Perez, Perez, Criminal Case No. CF0474-24 Criminal Case Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA § 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 13 of23 Page 13 of23 1 Moreover, Moreover, the the dissolution dissolution of of the marriage between Judge JudgeTolentino's Tolentino's wife and and Attorney 2 General Moylan Moylan over overtwenty twenty years years ago ago also also terminated the the "affinity" "affinity" between betweenthe the former former spouses spouses 3 resulting from from such such marriage. marriage. Herrera Herrera v. v. Hernandez, Hernandez, 80 Cal.Rptr.3d 491,494 494 (Cal. Ct. Ct. App. 6th App.6th 4 Dist. Dist. 2008) 2008) (dissolution (dissolution of ofmarriage marriage terminates terminates affinity between between parties parties arising arising from from such such 5

6 marriage for purposes of determination purposes of determinationof of whether whether aajuror jurorisissubject subj etto to challenge challenge for for bias bias even even if if

7 the the former former spouses spouses have have aa child child together). together). Consequently, Consequently, while Judge Judge Tolentino Tolentino and and his his 8 relationship of stepchildren enjoy a relationship of affinity in in the first degree to each other by byvirtue virtue of of the thejudge's judge's 9 marriage marriage to their mother, 14 there their mother,14 there isis absolutely absolutely no no relationship to any relationship to any degree degree between between Judge Judge 10

11 1 Tolentino and and Attorney General General Moylan. Consequently, Consequently, the provisions of Section Section 6105 6105 do not not

12 12 apply.rs 3pp1y.15 13 D. The The OAG OAGhas hasprovided providedno nolegal legalauthority authoritynornorfactual factualaverments avermentsnecessary necessary to to 14 establish aa relationship establish relationship requiring disqualification or requiring disqualification orrecusal recusal under under Section Section 6105.

15 15 The OAG OAG relies relies heavily heavily on on the the decisions decisions in People vs. vs. Taitingfong, Criminal Case No. Criminal Case No.

16 (Jun. 4, CF0024-24 (Jun. 4, 2024) 2024) (Iriarte, J.), and and in in People People vs. San Agustin, 2024 Guam 2 in support vs. San support of of 17 its Objection. section.However, However,neither neithercase caseprovides provideslegal legal support supportfor for the the finding that Judge JudgeTolentino Tolentino 18 disqualified from is disqualified from presiding presidingover over cases casesinin which whichthe the OAG involved, as OAG is involved, as both both can can be be 19

20 distinguished from the case before this Court. 16 16Curiously, Curiously,Acting ActingChief Chief Prosecutor Prosecutor Rudolph Rudolph fails fails

22 14 In 14 Inre reJoseph Joseph & & Sally Sally Grablich Trust, 984 N.W.2d 517, 552-553 (Mich. Ct. App. 2021) (citing Bliss v. Grablich Trust, v. Cai/le Caille Bros. 23 23 Co., 113 N.W. 317 Co., 113 1907) ("when (Mich. 1907) 317 (Mich. ("when aa couple couple marries, marries, each each spouse spouse becomes becomes related related by affinity affinity toto the the other othe spouse's blood relatives by the same degree") (emphasis added)). 15 Attorney 15 Attorney General General Moylan Moylan isis not not aa "party" "party" toto the criminal criminal proceeding proceeding under Section 6105(b)(5)(A), 6l05(b)(5)(A), but merely a 24 representative of of the People, who, along with the Defendant, are the only "party" "party" to to the the criminal criminal case. See, People v. 25 Robinson, 27 Misc.3d, 635, 637, 898 N.Y.S.2d Robinson, N.Y.S.2d438,438,439 (Sup.Ct. 20l0)("the 439 (Sup.Ct. 2010)("theonly onlyparties partiestoto criminal criminal litigation litigation are are the th People, represented by the district district attorney attorney of the county, and the the accused, accused, represented represented by assigned assigned or or retained retaine 26 counsel."), counsel."); 55 GCA GCA §§ 30l03("The 30103("The Attorney Attorney General General shall shall have have ... the right ... to bring action on behalf behalf of of Guam Guam citizens as representing the citizens as aa whole whole forfor redress redress ofof grievances grievances which which thethe citizens citizensindividually individuallycannot cannotachieve ..... As achieve....." 27 such, Section 6105(b)((5)(A) does does not not apply apply because because Judge Judge Tolentino Tolentino isisnotnotrelated relatedwithin withinthree threedegrees degreestotoa party. party. 16 In both is both cases, the the Defendant, Defendant, notnot the the OAG OAG filed tiled the Objection. Moreover, trial courts are not bound by the decisions 28 of other of other trial courts' ruling ruling on on the the same same issue, issue; therefore, this Court Court does notnot adopt adopt the ruling in Taitingfong. Although San Agustin is controlling law in this Court, it is is inapplicable inapplicable in in this this case case because because itit does does not not involve involve the the circumstance circumstances addressed by the Guam Supreme Court Court in San Agustin.

People v. Randy People v. Randy John John Peterus Perez, Criminal Case No. CF0474-24 Petrus Perez, Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement Statement of ofObjection Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 14 of23 23 11 cite or discuss to cite discuss this this Court's Decision Decision and and Order Denying Denying the the OAG's OAG's Statement of Objection 77 Statement of 2 GCA GCA §§ 6107 DisqualifyininPeople 6107 And Motion to Disqualv Peoplevs. Ybanez, Superior Court of Guam vs. Ybanez, Guam Criminal 3 Case No. CF0447-23 Case CF0447-23 (Jun. (Jun. 12, 12, 2024) 2024) in in its Objection despite despite Ms. Rudolph having Ms. Rudolph having filed the the 4 17 Objectionin Objection inthat that case case and and being served served with withthe theCourt's Court'sdecision decisiondenying denyingthe thesame. same.17 5

6 1. San Agustin does not not apply to the the instant instant case. case.

7 The OAG OAGmisapplies misapplies the the holding holding of ofthe the Guam Guam Supreme Supreme Court Court in San San Agustin, which is 8 procedural. Summarized in its most largely procedural. most simple form, the mle rule in inSan Agustin is that a judge San Agustin 9 who is disqualified disqualified from from presiding presiding over aa case case must must also also be disqualified disqualified from serving serving as as the the 10

11 11 recusal judge recusal case. San judge in the same case. ,i 36 ("We Agustinatat11 San Agustin ("Weexercise exerciseour oursupervisory supervisory authority authority to

12 12 clarify that clarify that aa disqualified disqualifiedjudge judgeshould shouldnot notbe be appointed appointed as as a recusal recusal judge."). judge."). San San Agustin does

13 13 not, as the not, the OAG OAG contends, contends, extend in any any way way to to support support aa finding finding that that Judge Judge Tolentino Tolentino is is 14 instant case disqualified in the instant caseor orin inall all cases casesinvolving involving Attorney General General Moylan. Neither Neither that that 15

question nor one one remotely like itit was was before before the the Guam Guam Supreme Supreme Court inSan Agustin. 18 San Agustin./8 16

17 // II

19 17 See, Decision and Order Denying the OAG'5 Statement of Objection 7 GCA § 6107 And Mofion to Disqualy in 17 20 20 See, Decision and Denying OAG's of Objection 7 § 6107 And Motion to Disqualify CF0447-23 (Jun. (Jun. 12, 2024), which was served upon 12, 2024), upon thetheOAG OAG viavia Email Emailon onJuneJune 12, 12, 2021,Notice 2021; Notice of ofEntry Entry on on Docket Docke 21 21 of ofDecision and Order Denying the Decision and the OAG's Statementof OAG 's Statement Objection 77 GCA of Objection GCA §§6107And 6107 And Motion Motion to toDisqualyjz Disqualify (Jun (Jun 13, 13 which was sewed 2024) which served upon upon the OAG OAG via viamail mailon June 13, onJune 13, 2024. 2024. There is is no no explanation explanation for for the the glaring omission omission 22 of this of this Court's Court's Decision Decision in Ybanez Ybanez from thethe OAG's OAG'sObjection Objectionand less of and less ofananexcuse excuse for forisisabsence absence given given that that the th OAG's OAG's Response Response contains contains aa brief briefmention mention ofofthisthisCourt's Court'sDecision, Decision,without withoutdiscussion discussion or orcursory cursory attempt attempt at a 23 distinction. See See Response Response at p. 3. Ms. Rudolph is reminded that Rule 3.3 3.3 of the Guam RulesRules of Professional Professional Conduct Conduc mandates aa lawyer lawyer practice candor toward toward the thetribunal tribunalandandnot notknowingly knowinglyfail fail to disclose to the tribunal legal authority authori 24 in the controlling jurisdiction jurisdiction known to the the lawyer lawyer to to be directly adverse to the the position position of of the the client. It is insufficient insufficien that the Response contain contain a subtle nod to Ybanez Ybanez as as "disqualification "disqualificationwas was denied denied inin one one matter." matter." Response Response at at p. 6. 18 In San Agustin, Judge Tolentino voluntarily reused himself from hearing the criminal matter due to a close personal 18 25 In San Agustin, Judge Tolentino voluntarily recused himself from hearing the criminal matter due to a close persona relationship withwith both both defendants that case. defendants in that case.AsAs distinguished distinguished from from thethe instant instantmatter, matter,thetheconflict conflictinvolved involved parties partie 26 to the criminal criminal proceeding, not Attorney proceeding, not Attorney General General Moylan, who is is not a party in thisthis case. case. See, See, fn.fn. 15, 15, supra. supra. More Mor importantly,San San Agustin Agustin addressed whetherJudge addressed whether JudgeTolentino, Tolentino,who whohad hadpreviously previouslyrecused reused himself from from presiding overove 27 the trial court court case, was also disqualified disqualifiedfrom fromsitting sittingasasthe therecusal judge in recusaljudge inthe the same same case. case. The The Supreme Supreme Court simply decided, as decided, to Judge as to JudgeTolentino's Tolentino's recusal recusal decision, decision, "Under "Under 77 GCA GCA§§6107, 6107,aa disqualified judgelacks disqualifiedjudge lacks the the power power toto hear hea 28 determine the and determine the matter. matter.Once Oncedisqualified, disqualified, a judge judge cancantake take no no action action-- even even when when acting in in aa limited limited capacity capacity asas a recusaljudge." judge." TheThe substantive questionof substantive question ofdisqualification disqualification involved involved facts very specific specific to Presiding Judge Alberto C. Judge Alberto Lamorena Lamorena III III and and Attorney Attorney General General Moylan Moylanand,and, therefore, therefore,areare distinguished distinguished on on those facts from application application here.

People v. Raviv John v. Randy John Petrus Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision and Decision Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of GCA § Objection 77 GCA andMotion 6107 and § 6107 Motion to to Disqualify Disqualify Page 15 of23 Page 15 of23 1 // II 2 2 1II 3 2. The TheCourt's Court'sDecision Decision and Order in Ybanez applies here.

4 In In People People v. v. Ybanez Ybanez et al., Superior Court of Guam Guam Criminal Case Case No. No. CF0447-23 CF0447-23 (Jun. (Jun. 5 12, 12, 2024), this Court 2024), this Court rejected rejected the theOAG's OAG's Motion Motion to to Disqualify Disqualify Judge Judge Tolentino Tolentino on on identical identical 6 finding: 19 grounds, finding:19 7

8 Judge Judge Tolentino's spouse isis not Tolentino's spouse not a party party to to the the proceeding, proceeding, or or an an officer, trusteeof director, or trustee of aparty. party.She Sheisisnot notacting actingas as a lawyer lawyer in thethe proceeding; proceeding, 9 known by nor known by the the Judge Judge to to have have ananinterest interest that that could could bebesubstantially substantially affected by thethe outcome outcome of the the proceeding. proceeding. SheShe isis not, not, to to the the Judge's Judge's 10 knowledge, knowledge, likely to to be be aa material material witness witness in in the the proceeding. proceeding. Therefore, 111 none none of of these these circumstances appliesto circumstances applies to Judge Judge Tolentino Tolentino to to invoke thethe mandatory disclosure requirements mandatory disclosure requirementsof of Section Section 6106. 12 12 This Court Court ruled further that Judge further that JudgeTolentino's Tolentino's prior prior recusals recusalsdue duetoto Mr. Mr. Moylan's 13 13

14 14 biological biological relation relation to his his stepchildren stepchildren did did not not mandate mandate his his disqualification disqualification under under the the

15 15 circumstances, particularlywhere circumstances, particularly wherethere thereisisno noallegation allegation of a conflict conflict other other than the mere than the mere fact fact of a

16 16 familial relationship relationship between Mr. Moylan Moylan and judge's stepchildren: and the judge's stepchildren: 17 17 ...[I]n ... [I]nconsidering consideringdisqualification disqualification under under Section 6105(a), 6l05(a), "what "whatmatters matters is 18 not 'actual bias," bias,' but the the 'appearance 'appearance of of bias."' bias.'" Van Van Dex ,r 32, citing Dizon Dox1132, Dizon v. Super v. Cf., 1998 Super Ct., Guam 33 ,rqi8.8.InInevaluating 1998 Guam evaluatingthetheOAG's OAG's claims, this Court 19 19 assumes assumes as astrue trueall allevidence evidence found found in in the the record record andand in inthe theObjection, Objection, even 20 if if uncorroborated uncorroborated by by additional additional evidence, and applies "the standard standard ofof a 'reasonable person' who who knows knowsall allthe thefacts, facts,and andunderstands understands the contexts 21 of ofthe jurisdictions, parties, parties,and andcontroversies controversiesinvolved involved..." ... "Id ,r 32, quoting Id.1132, Ada v. v. Gutierrez, 2000 Guam Guam22 22,r,r W 12-13. 12-13.Moreover, Moreover, "[a] courtcourt should should not 22 hypothesize about what the the reasonable reasonableperson personwould would believe believe only upon upon the 23 moving party's party's allegations. allegations. Instead, Instead, itit should should decide decide what what thethe reasonable reasonable person would believe about a judge's judge's partiality partiality given given all all the the relevant relevant facts 24 in the controversy." Ada ,r 12. the controversy." 12. *** 25 *** 26 In In the instant case, the instant case, the non-disclosure non-disclosureof of the the relationship relationship complained complained of of by the the Office Office of ofthe the Attorney Attorney General General did did not not fall fall within within the the specific specific 27 disqualification provisions of7 disqualification provisions of 7 GCA GCA §§ 6l05(b), 6105(b);therefore, therefore, Judge Tolentino Judge Tolentino 28

19 The Court incorporates its Decision in Ybanez herein as if fully set forth. 19The Court incorporates its Decision Ybanez herein as fully forth.

People v. v. Randy Rana John John Petrus Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision and Decision Order Denying and Order Denying the the OAG' OAG'ss Statement of Objection Statement of § 6107 GCA § Objection 77 GCA 6107 and andMotion Motion to to Disqualify Disqualify Page 16 of23 Page 16 of23 11 was not required to any waivers or to disclose and seek any agreements from the or agreements parties under 6016. As such, under Section 6016. Court DENIES the Objection of such, the Court 2 20 the OAG the Judge Tolentino's OAG to Judge these grounds. competency on these Tolentino's competency grounds." 3 filing aa Response Despite filing to Judge Response to Tolentino's Answer on August 13, Judge T01entino's 2024, just 13, 2024, weeks just a few weeks 4 after the Ybanez OAG failed Ybanez Decision, the OAG address this failedtotoaddress Court's ruling this Court's therein or ruling therein otherwise or otherwise 5 21 6 6 proffer aa good proffer argument to faith argument good faith rule differently to rule in this case. differently in case." the Court's Thus, the Thus, Court's ruling Ybanez is Ybanez is

77 San Agustin. and San Taitingfongand OAG's urgings to adopt Taitingfong theOAG' despitethe case despite as applicable to the instant case Agustin. 8 3. Judge JudgeTolentino Tolentinoisisnot se. biased per se. notbiased 9 In its Response Judge Tolentino's Answer, Response to Judge the OAG Answer, the argues that OAGargues Judge Tolentino is that Judge 10 "Biased, Per Se." Response at p. 3. Se." Response However, the 3. However, OAGprovides the OAG no sound provides no legal authority sound legal in authority in 11 11

12 12 this bare support of this support assertion. Indeed, bare assertion. the Court Indeed, the gravelyconcerned Court isis gravely thatthe concernedthat arguments thearguments

13 13 advancing this position arguing a position by arguing law by the law of the stateof current state the current misrepresent the completelymisrepresent position completely position 14 14 that rejected by that was clearly rejected the drafters by the ofthe drafters of statute mandating thestatute In the mandating disqualification. In 1985 the 1985 15 15 16 noted: Comment to Section 6105(b), the Compiler noted: 16

17 1985 COMMENT: This 1985 COMMENT: drafterhas Thisdrafter heardmany hasheard comments from many comments attorneys from attorneys who who have objected to the the procedure provided in the procedure provided Guam CCP. Many the Guam Many 18 preferencefor attorneys have shown aapreference the California for the California method of determining disqualifications. However, the disqualifications. However, the California California CCP, CCP, §§ 170, 170, isis adapted adapted toto the the 19 19 multiple-court system California. system in California. Such Such a a system system cannot cannot be be transferred transferred 20 without change to without change because of Guam because to Guam our unified, of our single court unified, single system. court system. Therefore, this Therefore, this Section thoseportions Section adopts those portionsof ofCalifornia California §170 170 which 21 substance of with the procedure, but not substance deal with judicial disqualifications of judicial adapted to and they have been adapted to Guam. 22 22

23 Not Not included included isis an an equivalent equivalent ofof California California CCP CCP § 170.6 170.6 -- relative relative to to disqualification for prejudice. Under this law, an attorney for prejudice. could, by attorney could, by filing filing 24 receiving After receiving himself. After recuse himself. judge recuse that a judge require that only, require affidavit only, an affidavit comments on comments sides of on both sides this question, of this this drafter question, this believes that drafter believes the that the 25 sections provide foregoing sections adequate relief for provide adequate judicialbias, for judicial prejudice and bias, prejudice and 26 26

27 27 20 See, Ybanez at pp. 13-15. 20 See, Ybanez 21 decision, but proffers nothing Ybanez decision, 28 21 AA single single clause clauseininthe theResponse Responseacknowledges acknowledgesthe thebirth birthofof the thebirth birth of of the the Ybanez more more by wayway ofofdiscussion discussion or distinction. distinction. See Response at See Response at p. p.33(" ("...and and disqualification was denied in disqualification was in one matter, Le., i.e., People People v. Richard Richard K Ybanez. et al., Y Ybanez, CF0447-23 .... "). al., CF0447-23....").

People People v. v. Randy RandyJohn Petrus Perez, JohnPeterus Perez, Criminal Case No. CF0474-24 Criminal Case Decision and Decision Order Denying and Order the OAG's Denying the OAG's Statement of Objection Statement of Objection 77 GCA GCA § § 6107 6107 and andMotion Motion to to Disqualify Disqualify Page 17 17 of23 of23 1 conflict conflict of of interest. interest. QTo QaddI the California law permitting automatic automatic disqualification uponQ upon fill affidavitQ fprejudiee could, in practice, resultQ !![prejudice in 2 QIQ the Bar making making Q de facto facto assignments assignments grQ[ judges Q!!!! @ the Court. Court. The 3 procedure procedure provided providedmerehere allows allows Qan unbiased unbiased review gr Q[ disqualification, Q t doesQt but notpermit permit automatic automatic disqualification withoutQ the [edge's judge's having 4 met specific grounds Q[ grdisqualification._ 5 added). (emphasis added). 6 It is incontrovertible It is incontrovertible that that Cal Cal Civ Civ Pro Pro §§ 170.1 170.1 is not identical is not to Guam's identical to Guam's statute. The Guam statute. The Guam 7 8 did not Legislature did not adopt the requirement that a judge judge recuse him or herself automatically where 8

99 the proceeding a lawyer in the proceeding is the former former spouse of the judge's spouse. spouse. A plain review of of the

10 California California statute would reveal this glaring difference. 11 §§ l70.l.Grounds 170.1. ·Groundsforfordisqualification. disqualification. (a) (a) AA judge judge shall shall be be disqualified disqualified if if 12 12 any one or more of the following are true: * * ** are true: (4) The judge, or or the spouse spouse of ofthe the judge, judge, or or aa person person within within the third degree 13 of of relationship to either of them, or the spouse of ofsuch such aa person person is aa party party to 14 the proceeding oror an officer, director, director, or or trustee ofofaa party. party. (5) A lawyer or a spouse spouse ofof aa lawyer lawyer in in the the proceeding proceeding is is the the spouse, spouse, 15 former former spouse, child, child, sibling, sibling, or parent of the judge or or parent or the the judge's judge's spouse or ifif such aa person person isis associated associated in in the the private private practice practice of law 16 with a lawyer in the proceeding. 17 17 Cal. Civ. Proc. Proc. Code Code§ 170.1 170.1 (West) (West) (emphasis (emphasis added). 18 18 In contrast, Guam's In contrast, Guam's judicial judicial disqualification disqualification statute statute 77 GCA GCA §6105(b)(5)(A) § 6105(b)(5)(A) and and (B) (B) reads: reads: 19 19

20 Where he (5) Where she or he or she or his her spouse, his or her spouse, oror aa person person within the third of degree of relationship to either of them, or the spouse of such person: 21 or an officer, (A) is a party to the proceeding, or officer, director, director, or trustee of 22 a party; (B) is acting as a lawyer in the proceeding; proceeding, .... 23 Guam's statute Not included in Guam's statute is paragraph (5) of the California Code: Code: "A lawyer or a 24 spouse of a lawyer in the proceeding is the spouse,.former spouse.former spouse, child, sibling, sibling, or or parent of of the 25

26 26 judge or the judge's spouse or if such a person is associated in the private practice of law with a

27 27 lawyer lawyer in in the proceeding." proceeding." To To argue argue that this is a procedural distinction, rather than a substantive 28 . I 1 | erroneous; however, itit does one, is erroneous, does not not change change the the fact fact that that the the Guam Guam Leglslature Legislature rejected rejected the the

People People v. v. Randy Petrus Perez, Criminal Case No. CF0474-24 Randy John Petrus CF0474-24 Decision Decision and Order Denying and Order Denying the theOAG' OAG'ss Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and Motion to and Motion to Disqualify Disqualify Page 18 of23 of23 1 automatic disqualification provisions where aa former automatic disqualification former spouse spouse of ofthe the judge's judge'sspouse spouse appears appears as a 2 2 lawyer in in aa proceeding proceeding before it. it. The The OAG OAGhas hasnot notprovided providedany any legal legalauthority authority to to support support aa 3 finding that finding that the the Guam Guam Legislature Legislature intended intended to adopt the same to adopt same provisions provisions despite despite the clear clear 4 omission omission of ofthe the language in in Section Section 6105. 6105. 5

6 4. Under Underanan"objectively "objectivelyreasonable reasonable person" person" standard standard and and considering considering the American Bar Association's Formal Opinion Association's Formal Opinion 488, 488, Judge Judge Tolentino was not Tolentino was not required required to to 7 disqualify disqualify himself himselfin in this this case. case. 8 Finally, Finally, the the Court Court addresses the "objectively addresses the "objectively reasonable reasonableperson" person"standard standard requirement requirement in 9 viewing the the disqualification disqualification question question in in this case. case. The OAG OAGcorrectly correctlystates states the the legal legalstandard standard 10

11 applicable in in determining determining whether whether aa judge judge must must be be disqualified disqualified under underthe theprovisions provisions of of Section

12 12 6105, 6105, quoting San Agustin: "A San Agustin: "A court should not hypothesize about about what what the the reasonable reasonable person 13 would believe about judge's partiality given all about a judge's all the the relevant facts in relevant/acts in the controversy controversy.... Under 14 14 this objective test, test, ... 'the court court asks whetheraa person asks whether personwith withknowledge knowledge of of all the facts would 15 15 7 " 16 perceive aa significant significant risk risk that that the the judge will willresolve resolvethe thecase caseon onaabasis basisother otherthan than the the merits. merits."' 16

17 Objection at p. p. 4 (quoting (quoting San San Agustin at 1,r 23) Agustin at 23) (emphasis (emphasis added). added). Judge Judge Tolentino's detailed detailed

is Answer provides provides relevant relevant facts facts establishing establishing that that no close close personal personal relationship relationship exists exists between between 19 19 himself and Attorney himself Attorney General GeneralMoylan, Moylan, nor between betweenJudge JudgeTolentino's Tolentino'swife wife and andMr. Mr. Moylan. Moylan. The 20 OAG's OAG'sObjection Objectionand and Response Response only only declare, declare, without without citing citing specific specificfacts, facts, that that aa close close personal personal 21 22 relationship exists. 22

23 Formal Opinion In its Fonnal Opinion 488 488 (Sept. (Sept. 5, 5, 2019), 2019), the the American American Bar Bar Association, Association, considering considering

24 24 judges' disqualify themselves judges' obligation to disqualify themselves in proceedings proceedings in which they they have have social social or close 25 25 | . . 1 o personal relatlonshlps relationships wlth with the lawyers lawyers or orparties parties other otherthan than aa spousal, spousal, domestic partner partner or other 26 close family relationship, looks to relationship, looks to Rule Rule 2.11 2.11 of of the the Model Code of of Judicial Judicial Conduct ("Model Conduct ("Model 27

28 Code")requiring Code") requiring disqualification disqualification "because "because their their impartiality impartiality might might reasonably reasonably be be questioned." questioned."

People People v. Randy John Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision and Decision Order Denying and Order Denying the the OAG' OAG'ss Statement of Objection Statement of § 6107 GCA § Objection 77 GCA 6107 and andMotion Motion to to Disqualify Disqualify Page 19 of23 Page 19 of23 1 ABA Formal FormalOp. op. 488 488atat11(Sept. (Sept.5,5,2019) 2019)(citing (citingN.Y. n.y. Jud. Jud. Adv. Adv. op. Op. 11-125, 11-125, 2011 2011 WL WL 8333125 2 *4 (Oct. 27, 2011). 2011). In In this this regard, regard, the the ABA ABA opined opined that "Judges are ordinarily in the best position position 3 to assess whether their impartiality impartiality might might reasonably be questioned when when lawyers lawyers or or parties with 4 whom they they have have re1ationships...appear relationships ... appear before before them." them." Id. Id. However, However, the the ABA ABA notes that "in 5

66 communities and smaller communities and relatively relatively sparsely-populated sparsely-populated judicial districts, judges judges may have social

7 and personal contacts with lawyers and parties parties that are unavoidable. In that circumstance, circumstance, too 8 strict strict aa disqualyication disqualification standard standard would would be be impractical impractical to to enforce enforce and and would potentially disrupt 9 ofjustice." Formal Op. 488 the administration of 488 at 2 (emphasis added). added). The The ABA also recognized 10

11 that over time relationships change "or "or may have have ended endedsufficiently sufficiently far far in in the the past past that that it is not a

12 12 current r ent concern concer n when viewed viewed objectively." objectively." Id. Id. "Fina "Finally, judges judges must must aavoid disqualifying void disqua lifying

13 13 themselves too quickly or or too often lest litigants be encouraged to use disqualification motions as 14 14 a means ofjudge-shopping, judge-shopping, or or other other judges in the same court court...become overburdened." Id. 15 15

The Formal Focal Opinion Opiniontracks tracks the the rationale rationale ofSanAgustin, San Agustin, wherein wherein the Guam Supreme Court 16 16

17 17 "Our recusal statute promotes fairness by avoiding the appearance declared, "Our appearance of of bias, but a party's party's

18 18 one-sided perception one-sided perception of ofan an appearance of of bias is not grounds for disqualification." San Agustin at 19 19 , 25. The 1125. The OAG OAG advances its its Objection solely on a "familial relationship" and a claim by Chief Chief 20 Prosecutor Rudolph Prosecutor Rudolph that that this relationship is this relationship "significant and is "significant continuing" without any facts and continuing" facts 21

22 presented to illustrate this this condition. condition. This This is is simply simply not enough. 22

23 23 Adopting the recommendations recommendations of ofthe the ABA ABA in in its its Formal Formal Opinion Opinion 488, 488, and, and, based on the

24 24 objective reasonable reasonable person standard standard and and considering considering the the Answer filed by Judge Tolentino and 25 the judicial judicial community and the community and the lack lack of of factual support provided by the OAG, provided by OAG, as well as the context 26 26 in which the disqualification is sought, sought, the the Court Court makes makes the the following following findings: 27

People People v. v. Rana§/ John Petrus Randy John Petrus Perez, Perez, Criminal Case Case No. CF0474-24 Decision and Decision Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of GCA § Objection 77 GCA and Motion 6107 and § 6107 Motion to to Disqualify Disqualify Page Page 20 of23 1 1. Other Otherthan thanthe themere merefact fact of ofa biological relationship between Attorney General Moylan 2 and Judge Tolentino's stepchildren, there is no credible evidence of Tolentino's stepchildren, of any relationship 3 - within within three three degrees degrees or or otherwise - between between Mr. Mr. Moylan Moylan and Judge Tolentino. 4 2. The circumstances since October, circumstances since 2022 under which Judge October, 2022 Judge Tolentino Tolentino disqualified disqualified 5

6 himself voluntarily have changed, voluntarily have changed, and and there there is no evidence evidence to to contradict contradict Judge Judge

7 T01entino's description of Tolentino's description of the the meeting meeting between between Attorney Attorney General General Moylan, Moylan, the the AG's AG's 8 staff, Judge Tolentino and court staff aflirming that any conflict relating to the familial staff affirming 9 association which previously existed between Judge Tolentino and Attorney General 10

11 Moylan "no longer longer existed," existed," therefore, therefore, Judge Judge Tolentino Tolentino is is not not required required to disqualify disqualify

12 12 himself under Section 6105, himself 6105; 13 3. Neither Neither Judge Judge TTolentino olentino nor nor his his spouse spouse (as (as the the former former wife wife of ofAttorney Attorney General General 14 Moylan) are within the third degree of of relationship to any party to to the the proceeding proceeding nor 15

to anyone acting as a lawyer in the proceeding, proceeding, as as there is no legal authority cited by 16

17 the OAG which which affirms affirms a relationship within three degrees after the termination of of a

18 marriage, which is a relationship by affinity; affinity, 19 19 4. Attorney AttorneyGeneral General Moylan Moylanisisnot notaa"party" "party"toto the the proceeding, proceeding, but but aa representative representative of of 20 the People of of Guam in matters brought in the name of the People of Guam; Guam, 21 5. Attorney AttorneyGeneral GeneralMoylan Moylanand andMrs. Mrs. Tolentino's Tolentino's children children are are now now grown grown adults adults living 22

23 on their their own, own, which which poses poses aa significant significant change change inin relationships relationships distancing distancing Judge Judge

24 Tolentino from Attorney General Moylan; Moylan, 25 6. There Thereisisno noevidence evidenceofofaa "close "close personal personal relationship" relationship" between between Mr. Mr. Moylan and Judge 26 Tolentino requiring disqualification under Section 6105 or the the Model Model Code; Code, 27

People People v. Randy John Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision and Decision and Order Denying the Order Denying the OAG's OAG's Statement of Objection Statement of § 6107 GCA § Objection 77 GCA 6107 and andMotion Motion to to Disqualify Disqualify Page 21 21 of23 of23 1 7. InInthis thissmall smalllegal legalcommunity communityininGuam Guamand andwith withaatrial trialcould court bench consisting only of of 2 four (4) dedicated criminal court dockets, requiring Judge Tolentino, who is one of of the 3 four (4) judges assigned to the criminal four criminal docket, docket, to disqualify disqualify himself himself pursuant pursuant to 4 Section 6105 from all cases in which Attorney General Moylan Moylan represents the People 5

6 Guam would of Guam would (a) (a) be be impractical impractical to to enforce, enforce, (b) (b) negatively negatively impact impact the the efficient efficient

7 administration of justice, administration justice, and (c) lead lead to to judge-shopping judge-shopping and/or and/or overburden overburden other other 8 judges in in the the same court. 22 samec0urt.22 9 the Court Having made the following findings, the Court finds finds that that Judge Judge Tolentino is not required 10

111 to disqualify himself himself under Section 6105(a) 6105(a) and and rejects rejects the the OAG's OAG's Objection.

12 12 CONCLUSION

13 This This Court Court finds finds that that Judge Judge Tolentino Tolentino is is not not disqualified disqualified under under 77 GCA GCA §§ 6105(b)(5)(A) 6105(b)(5)(A) or or 14 (B) or Canon 3 of the Model Code from presiding over this case on the grounds that he has any 15

familial association with Attorney Attorney General General Moylan. Moylan. Notwithstanding Notwithstanding Attorney Attorney General General Moylan's Moylan's 16

17 17 relationship to biological relationship to Judge Judge Tolentino's Tolentino'sstepchildren stepchildrenand andformer formermarriage marriagetotola/Irs. Mrs. Tolentino,

19 22 Hz Indeed,the Indeed, filingby thefiling by the theOAGOAG of of over over fifty (50) (50) identical identical Objections Objections to to Judge Judge Tolentino's Tolentino's assignment assignment in criminal 20 20 cases cases hashas had had aa significant significant negative negative impact impact on the caseload caseload of the three remaining dedicated dedicated criminal courts.courts. For Fo example, asserted speedytrial asserted speedy trial cases casesininwhich which Judge JudgeTolentino Toientino was assigned assignedpursuant pursuanttotothe theAdministrative Administrative Rule werewer 21 21 reassigned reassigned to to other judges due criminal judges other criminal due to to the the running running of the speedy speedy trial clock. In In CF270-24, CF270-24, PeoplePeople v. v. Michael Michae Gregory Gregory Rosas, Rosal, this Court was was assigned to take the matter matter to to trial trial with only four days only four days remaining remaining on on his his speedy speedy trial 22 clock. See. clock, Min. of See. Min. Aug. 2, ofAug. 2, 2024 2024 Hrg. Hrg. atat9:22:26 9:22:26 AM. AM.On OnAugust August2,2,2024, 2024,despite despitethat thatthe thematter matter had had been been pending before before Judge Tolentino since Judge Tolentino since May May 24, 24, 2024, 2024, andand the the Defendant Defendant having having asserted asserted his right to speedy trial on on June 21, June 21 23 2024, the People were were unprepared unprepared for for trial trial and and failed failed to file file any any witness witness lists lists by the Pre-trial Conference. On August 2, 2024, the People People filed filed a Memorandum Memorandum Supporting Supporting People's People's Motion Motion to Dismiss Without Prejudice in the Interest Interest oof 24 Justice and the the Court Court granted thedismissal granted the dismissalbut buthas hasreserved reservedon onthe theissue issueofofwhether whetherititwill will be bedismissed dismissedwithwith or or withou without prejudice. prejudice. Id IdThe TheCourt Courtexpresses expresses grave grave concern concern about about whether whether these these Objections have been been filed filed by the OAG in good 25 In at faith. In at least least one one case assigned assigned to to this this Court, Court, People People ofofGuam Guam v. PrimaPrima Sebastian, Sebastian, Criminal Criminal Case Case No. CF0506-24, the Objection, Objection, filed filedonon July July 29, 29, 2024, 2024, was was pending pending this this Court's Court'sdetermination determinationas as recusal judge (see Ntc. recusaljudge Ntc. of Assignment 26 ofRecusal Recusal JudgeJudge(Jul. (Jul. 31, 31,2024) 2024)and andCRl.1 CRl.l Form 3 (Aug.(Aug. 1,1, 2024)) 2024)) when when the People filed a Motion Motion toto Dismiss Dismiss on August 12, 12, 2024. Despite the August 12, 12, 2024 Motion Motion to to Dismiss, Dismiss, on on August August13, 13,2024, 2024, the the People People filed filedaaResponse Respons 27 to Judge Tolentino's Tolentino's Answer. Answer. One One might might contemplate contemplate that perhaps the the assigned assignedprosecutor prosecutorfiled filedthe Motion Motion to Dismiss Dismis without Chief without ChiefProsecutor Prosecutor Rudolph Rudolph being being aware aware ofofthe the Motion whenshe Motionwhen she filed filedthe the Response. However, Chief Response. However, ChiefProsecutor Prosecuto 28 Rudolph filed Rudolph both the filed both the Motion MotiontotoDismiss Dismisson onAugust August12, 12,2024, 2024,andandthe theResponse Response on on August August 13, 13, 2024. 2024. Magistrate Magistrat Judge Jonathan JonathanQuan Quangranted grantedthe theMotion Motion to to Dismiss Dismiss on on August August 13, 2024.2024. Order Order (Re: (Re: Dismissal Dismissal Without Prejudice) (Aug. (Aug. 13,13, 2024).

People People v. Ranaj/ Randy John Petrus Petrus Perez, Perez, Criminal Criminal Case Case No. CF0474-24 Decision Decision and Order Denying and Order Denying the the OAG' OAG'ss Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 22 of23 1 neither Judge Tolentino nor nor his wife are related within within three degrees to to Attorney Attorney General Moylan 2 either by affinity or consanguinity, regardless of whether Mr. Moylan of whether Moylan is is aa party to the litigation 3 (which he (which he is is not) or or appearing as as a lawyer lawyer for a party. 4 For the reasons stated stated herein, the OAG's herein, the Statement of OAG's Statement of Objection Objection and Motion Motion to Disqualify 5

6 is REJECTED and the Motion is is DENIED. DENIED. This case case shall shall be returned to Judge Tolentino Tolentino for

7 further disposition. 8 SO ORDERED ORDERED this this 29th day day of August, 2024. 9

10 y, 111 HON RABLE MARIA T. CENZON 12 12 Superior Court of Judge, Superior of Guam 13 13

15 15

19 SERVICE SERVICE VIA VIA E-MAIL E-MAIL I acknowledge acknowledge that an 20 original original was was emailed to: to: ,rl~, e a , RfJ)J'C OM 21 Date:'z%24-W fimei IN' Date:8'•2/i-z.ffimeri A 7;;qA& II, /ma, ~ AJ" 'f" 22 IRpufy Oerk, Deputy Superior Court Clerk,Superiur Court ofof Guam Guam

People People v. v. Randy John Petrus Randy John Petrus Perez, Perez, Criminal Case Case No. CF0474-24 CF0474-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of 7 GCA Objection 7 6107 and GCA §§ 6107 Motion to and Motion to Disqualify Disqualify Page 23 of of23