People v. Perez

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...._

5

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

27

28

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

26

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

23

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

26

27

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

25

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

26

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

courseofoftwentytwenty

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

23

24

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 "greatthe "greatas 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

23

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

21

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

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

18

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

28

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

28

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,

18

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

14

15 15

16

17

18

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

23

24

25

26

27

28

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