FILED CLERK GF cLERK OF COURT 11 202G AUG ·29 202|eAUG 2: 18 Pfif2: 29 PM 18 2 SUPERIOR-QQLlPj° SUPERIOR 1COURT 3 OF:GlJAM~ FGUAM / IN THE SUPERIOR SUPERIOR COURT COURT OF GUAM 4
5 5 THE PEOPLE OF OF GUAM, GUAM, 6 Case No. No. CF0479-24 7 vs.
8 BENIF ACIO RANUK BENIFACIO RANUK, DECISION ECISION AND AND ORDER ORDER . R k ' -~ · R uk k (Answer to OAG's OAG's Statement Statement of of Objection) (aka a Tium Rengaw, engaw; aka a a Bonifacio 8 om1ac10 Renuk, en ; aka a 9 Bonifasio Renuk, Renuk; aka aka Renuk Renuk Bonifasio, Bonifasio; aka aka 10 Bonifaisio A. A. Ranuk), Ranuk), DOB: DOB:11/28/1972 11/28/1972 aka aka02/28/1973 02/28/1973 11 11
12 12 Defendant.
13 13
14 14 INTRODUCTION 15 15 1 16 16 This matter came before matter came before the the Honorable HonorableJohn Jolt C. Terlaje Terlaje on on August August l19 9"', \ 2024, 2024, for aa
17 17 Motion Hearing regardingthe Hearing regarding theOffice Office of of the the Attorney Attorney General's ("OAG's") Statement General's ("OAG's") Statement of
18 18 Objection ("Objection"), in in which which the the OAG OAG objects objects to to the the Honorable Honorable Alberto E. Tolentino Tolentino
19 19 ("Judge Tolentino") Tolentino") presiding presiding over overthe theabove-captioned above-captioned matter matter due due to to his his relationship relationship with with 20 Attorney General Attorney General Douglas DouglasMoylan Moylan("AG ("AG Moylan" Moylan" or or "then-Attomey "then-Attorney Moylan"). Moylan"). Upon Upon 21 consideration of the the arguments arguments and applicable applicable Guam law, the Court hereby DENIES OAG's OAG's 22 Objection. As As such, such, Judge Tolentino may Judge Tolentino may continue continue to preside over over this this matter. 23 BACKGROUND 24 24 This case began on July This July 9, 9, 2024, 2024,when whenthe theAttorney Attorney General General of of Guam accused accusedBenifacio Benifacio 25 25 Ranuk ("Defendant") ("Defendant") with with Possession Possession of ofaa Schedule Schedule II II Controlled Controlled Substance 3rd Degree (As aa 3'd Substance (As 26
27 Decision Decision and and Order Case Case No. CF0479-24,People CF0479-24, Peoplev.v.Ben yfacio Ranuk Benifacio Ranuk Page 1 of14 14 11 Magistrate's Con Felony). Magistrate's Compl. (Jul. 9, pl. (Jul. 9, 2024). 2024). The The matter matter was was assigned assigned to Judge Judge Tolentino Tolentino on 2 nd 1st, 2024. August let, 2024. Notice Notice of J. J. Assignment 1, 2024). Then, on August Assignment (Aug. 1, August 2"d, 2024,'the 2024,'the OAG 3 4 tiled a Statement of Objection and Motion to Disqualify Judge Tolentino based on his alleged filed 4 5 relationship with AG relationship with Moylan. Statement AG Moylan. Statement of of Obj. Obj. 77 GCA GCA §§ 6107 6107 & & Mot. Mot. to to Disqualify. Disqualify. (Aug. (Aug. 2, 2, 5
66 2024). Judge 2024). Judge Tolentino Tolentino answered the Statement of Objection answered the Objection on August 5, 2024. Answer to
7 Statement of Obj. Statement of Obj. (Aug. 5, 2024). The matter was assigned assignedtotothis thisCourt Court in in the the limited limited capacity
8 ofRecusal Recusal Judge on the same day. Notice Notice of Assignment Assignment ofRecusal Recusal J. (Aug. (Aug. 5, 5, 2024). 2024). The The OAG OAG
99 responded to Judge Tolentino's Tolentino's answer answer on on August August 12, 12, 2024. 2024. People's People's Resp. Resp. to to J.J. Tolentino's Tolentino's
10 Answer to Answer to Statement Statement of of Obi. Obj. 77 GCA GCA §§ 6107 6107 & Mot. to & Mot. Disqualify (Aug. to Disqualify (Aug. 12, 12, 2024). Defendant 2024). Defendant 11 gave their answer as well on on August August 13, 13, 2024. 2024. Def.'s Resp. to Gov't's Statement of of Obj. (Aug. 12 12 13, 2024). 13, 2024). The CCourt our tthen took t he hen t ook the ma matter t t er ofofJudge JudgeT olent Tolentino's disqualification ino's disqua lifica t under under 13 13 1
advisement. 14 14 Attorney General A. Attorney General Moylan's Moylan's Relationship Relationship with Judge Tolentino 15 15
It is undisputed that that Judge Judge Tolentino Tolentino is is married married to to AG Moylan's ex-wife, ex-wife, Doris Doris L.G. L.G. 16 16
17 17 Tolentino ("Doris"), and that Judge Judge Tolentino Tolentino is the stepfather stepfather to to AG AG Moylan's Moylan's two children, children,
18 Brandon Brandon (born (born 1990) 1990) and and Angela Angela (born (born 1992). 1992). Answer Answer to to Statement Statement of ofObj. Obj. at at 33 (Aug. 2, 2024).
19 AG Moylan and Doris divorced divorced in in 1997, 1997, and then, in 2005, Doris remarried to Judge Tolentino, 20 20 who remains her husband to this day. day. Id. Id As As recently recently as as October October 2022, prior to to AG AG Moylan's 21 election, Judge election, Judge Tolentino disqualified disqualified himself from cases involving then-Attorney Moylan in 22 private practice, practice, because because "Douglas Moylan, Esq., is the father of the father of my my step-children." step-children." Id. at 24-26, Id at 23 Exs. A-C. 24 A month month later, later, on on November November 8, 8, 2022, 2022, then-Attomey then-Attorney Moylan Moylan was was elected elected Attorney Attorney 25 26 General of Guam and became AG Moylan, taking office in January 2023. 2023. Id. Id at 2. Before being 26
27 Decision and Decision and Order Case No. CF0479-24, People v. v. Benifacio Benacio Ranuk Ranuk Page 2 of 14 Page 14 11 swam sworn in in as as Attorney General, General, however, however, then-Attorney then-Attorney Moylan Moylanrequested requested aa meeting meeting with with Judge Judge 2 Tolentino in 2022. Id The in December 2022. The meeting meeting took took place place in in Judge Judge Tolentino's Tolentino's chambers chambers with 3 the Administrator the Administrator of Courts, Courts, Judge Judge Tolentino's chamber chamber staff, and and then-Attorney then-Attorney Moylan's 4
5 transition chairperson,Mr. transition chairperson, Mr.Wilfred Id According Wilfred Aflague. Id AccordingtotoJudge JudgeTolentino, Tolentino,and andundisputed undisputed
6 6 the OAG, by the OAG,then-Attorney then-Attorney Moylan Moylan "assured "assured [Judge [Judge Tolentino] Tolentino] and and the the other other members members in
7 attendance thathe attendance that heperceived perceivedno noconflict conflict in his election election as as Attorney Attorney General General and and the the prosecution
8 of of criminal cases before criminal cases before [Judge [JudgeTolentino's Tolentino'sCourt]." Court]."Id Id Accordingly, Accordingly, since since AG AG Moylan Moylan took 9 office officein inJanuary January 2023, Judge JudgeTolentino Tolentino has haspresided presidedover over aamyriad myriad of of criminal cases all without 10 statements statements ofofobjection objectionfrom fromthe tAG',1, until theOAG until now. now. Only Only recently recently has the OAG has the OAG begun to file begun to 11 11 statements objections2 and of objection statements of only recently has and only JudgeTolentino has Judge Tolentino been disqualified because because of his 12 12 relationship withAG relationship with AG Moylan. 13 13 B. Recent RecentDecisions Decisions Regarding Judge Judge Tolentino's Tolentin0's Disqualification Disqualification 14 14 The first ever ever disqualification disqualification of ofJudge Judge Tolentino Tolentino (based (based on on his his relationship with 15 15 16 AG Moylan) AG Moylan)did didnot not arise arise out out of ofan objection from an objection from the the OAG, OAG, but but out out of ofan an objection objection 16 from aa Defendant. Defendant. On April April 5, 5, 2024, 2024, for for the the first first time, time, aacourt court found found that that "a "a reasonable reasonable 17 17
18 18 person could question whether whether Judge JudgeTolentino Tolentino could be impartial impartial in a case proceeding
19 19 at the the direction direction of of [AG] [AG] Moylan" Moylan"due duetotothe thefact factthat that Judge Judge Tolentino is stepfather to to AG AG
20 Moylan's children. People of Moylan's children. Guam v.v. Nakita of Guam Nikita T Aguon, Aguon, CM0145-21 CM0145-21 at 8 (Super. (Super. Ct. 21 Guam. Guam. April 5, 5, 2024). 2024). The The Honorable Honorable Joseph Joseph N. N. Camacho, Camacho, serving serving as as Judge Judge Pro Pro 22 Tempore, issued Tempore, the Decision issued the Decision and Order after and Order after Nakita Nakita T. Aguon, Aguon, the the Defendant Defendant in in the the 23
24 11 See SeeAnswer Answerto to Statement Statement ofof Obi. Obj. at 66 (Jul. 29, 2024) (Jul. 29, 2024) citing citing People v.v. Balatico, Balatico, Crim. Case No. CM0188-24; Case No. CM0188-24, People v. Rosal, Royal, Crim. Case CF0270-24, and People v. Rik Case No. CF0270-24, at, Crim. Case Rikat, No. CF0423-24 Case No. CF0423-24 and and Shane ShaneTenorio Tenorio Healy, Healy, 25 "Akoma trial: trial: Judge denies admission of AG AG evidence", evidence", Marianas Variety, November 23, 2023, 2023, Akoma trial: Judge denies admission admission of AG evidence I News AG evidence News I Marianas Variety News News & Views (mvarietv.com). (mvariety.com). 26 22 SeePeople See Peopleof of Guam Guam v.v. Richard Richard K Y. Yabnez, Yabnez, et. aLal, CF0447-23 at 5-6 (Super. Ct. Guam. Guam. June June 12, 12, 2024). 2024). 27 Decision Decision andand Order Case No.No. CF0479-24, PeoplePeople v. v. Benzfacio Benifacio Ranuk Page 3 of of 14 1 case, argued during case, during a hearing hearing on March March 1, 1, 2024, 2024, that that "there "there had had been been an an undisclosed undisclosed
2 2 familial relationship relationship between betweenJudge JudgeTolentino Tolentinoand andDouglas DouglasMoylan ... " Id Moylan..." at 4-5. Id at 3 Then, on May 1, 1, 2024, 2024, for the the first time during during AG AG Moylan's tenure as Attorney Moylan's tenure 4 General, the General, the OAG filed aaStatement OAG filed Statement of ofObjection Objection against against Judge Judge Tolentino Tolentino in aa 5 government corruption con'uption case, case,based basedon onJudge JudgeTolentino's Tolentino'srelationship relationshipwith withAG AGMoylan's Moylan's 6 7 children.See People of children. See People ofGuam Guam v. Richard Richard Y Ybanez, Ybanez, et. al, CF0447-23 CF0447-23 at at 5-6 (Super. (Super. Ct. 7 Guam. June 12, Guam. June 12, 2024). 2024). The The objection took place several several days days after after Judge Judge Tolentino 8
9 9 disqualified the OAG disqualified the OAG itself over over aa conflict conflict of ofinterest interest in the same case. Id same case. Id at at 5. The
10 Statement of Objection Statement of Objection cited cited the the precedent precedent set by Aguon aa few weeks weeks earlier. Id at earlier. Id at 6. 11 11 Ultimately, Ultimately, the the Honorable Honorable Maria Maria T. T.Cenzon Cenzondenied deniedthe the Statement Statement of ofObjection Objectionon onJune June 112 12, 12, 2024, holding that 2024, holding that Judge JudgeTolentino Tolentinowas wasnot notdisqualified disqualifiedunder under77GCA GCA §§ 6105(a) 6105(a) or or 13 13 (b), (b), and and that even if that even if he he was, was, the OAG's Objection the OAG's Objection was was untimely untimely under under 77 GCA GCA §§ 6107 6107 14 14 and constituted waiver. Id constitutedaawaiver. Id at at 23. 15 15
Concurrently, on May 21, Concurrently, on 21, 2024, 2024, aa Defendant Defendant in in another another case, case, similar to the the 116 6
17 Defendant Defendant in Aguon, filed an an Amended Amended Objection Objection on Judge Tolentino as Judge Tolentino See as well. See 17
18 18 People Guam v.v. Corina People of Guam Carina Jamel Jamel Taitingfong, Taitingfong, et Eral.al.("Taitingfong''), ("Taitingfong"), CF0024-24 at 4
19 19 (Super. (Super. Ct. Guam. Guam. June 4, 2024). June 4, 2024). The The Honorable Honorable Elyze Elyse M. M. Iriarte, Iriarte, sitting sitting as as aa recusal recusal
20 20 Judge, issued Judge, issuedaa Decision Decision and and Order Order finding finding for for the the Defendant that "[b Defendant that "[b]ecause of aa ]ecause of 21 reasonable perception that reasonable perception that Judge Judge Tolentino Tolentino continues continues a co-parental co-parental connection with 22 Attorney General Attorney General Moylan despite despite the the maturation maturation of their their mutual mutual children, he is children, he is 23 2 disqualified, and such disqualified, and such disqualification disqualificationhas hasnot notbeen beenwaived waived nor nor can can it be be cured cured 24 25 retroactively through an anethical ethicalwall." wall." Id Id at at 8. 25
27 Decision Decision and and Order Case No. No. CF0479-24, People v.v. Benifacio Benacio Ranuk Ranuk Page 44 of of 14 1 Finally, on on July July 18, 2024,(two 18, 2024, (two weeks weeks before before the the OAG OAG filed filed their their Statement Statement of
2 2 Objection Objection in in this case 3 the this cases) the Guam Guam Supreme Supreme Court issued an Opinion in San San Agustin v. 3 Superior Court, finding that that since Judge Judge Tolentino Tolentlno had previously dlsquahfied disqualified himself 4 from the from the case, based on his his close close relationship relationship with the Defendants, that the the Court Court "lacked "lacked 5 to act jurisdiction to act while while the the judge judge is is disqualified." San Augustin, 2024 Guam 2 at ,rii 19. disqualified."San 6 7 The Guam Supreme Supreme Court Court explained explained that thatthey theywere were using usingtheir theirsupervisory supervisory authority authority"to "to 7 8 8 clarify clarify that that aa disqualified disqualified judge judgeshould should not not be be appointed appointed as as a recusal recusaljudge." ,r 36. judge." Id. atat1]
9 9 In In the wake of ofthese these recent recent decisions, decisions, this this Court Court now nowtakes takes up up the same issue issue of of whether
10 Judge Tolentino Judge Tolentino should be be disqualified disqualified based basedhis hisrelationship relationshipwith withAG AG Moylan. Moylan.
11 11 DISCUSSION 12 12 7 GCA §§6105 7 GCA 6105 provides provides the the substantive substantive grounds for disqualification grounds for disqualification of ofaaJudge Judge in in Guam. Guam. 13
14 7 GCA §§6105(a) 7 GCA 6105(a) states in full: states in full: 14
15 15 Any Judge shall disqualify himself or herself Judge shall herself in in any proceeding in in which his or her impartiality might reasonably impartiality might reasonably bebe questioned, questioned,but butif, if, following following complete complete 16 16 disclosure to all parties in the the proceeding proceeding of of the reasons reasonsfor for disqualification, disqualification, all parties agree to having the the Judge continue to Judge continue to sit in the proceedings, he or she she 17 17 need not disqualify himself or herself. 18 18 See See 77 GCA GCA §§ 6105(a). 6105(a). 19 19 The Supreme Supreme Court of Guam, Guam, in interpreting interpreting this section, section, explained that that "what "what matters matters is is 'the 20 appearance of bias,' not 'actual bias."' Dizon 'actual bias."' Dizon v. v. Superior Superior Court, Court, 1998 1998 Guam ,r 10 (emphasis Guam 33 1] 21 added). "[N]o actual added). "[N]o actualshowing showingofofbias biasisisnecessary necessary for forrecusal recusal to lie."IdId.'H,r10. to lie." 10. Instead, Instead, the Court 22 must focus on "whether must focus "whether aa reasonable reasonable person would have a reasonable basis basis for questioning the 23
24 Judge's impartiality, not whether the Judge Judge isis impartial." impartial."People People v. v. Tennessean, Tennessean, 2010 Guam 12 24
25 25 'H,r 33 33 citingUnited citing United States States v.v. Cherry, Cherry, 330 F.3d 658, 330 F.3d 658, 665 665 (4 (4th th Cir. 2003). Cir. 2003).
26 3 3 Statementof Statement of Obj. Obj. 77 GCA GCA§§6107 6107&&Mot. Mot.to to Disqualify. Disqualify. (Aug, (Aug. 2, 2, 2024). 2024). 27 Decision Decision andand Order Case No. No. CF0479-24, CF0479-24,People v.v. Benifacio Benacio Ranuk Ranuk Page 5 of 14 11 In Guam, a Judge is mandated mandated to disclose any facts facts which which disqualify them them under Section 2 6105, if 6105, such grounds if such grounds exist. exist. 77 GCA GCA §§ 6106. 6106. When When such grounds exist such grounds and aa Judge exist and Judge fails to declare fails to declare 3 4 them as them required, any as required, file aa statement may file party may any party statement of of objection objection under under 77 GCA GCA §§ 6107. 6107. The The Supreme Supreme 4 Court of Guam Court of Guam has has described described the procedure prescribed the procedure prescribed by by 77 GCA GCA §§ 6107 6107 as follows: as follows: 5
6 Pursuant to 7 GCA 6107, if a judge judge does not recuse himself, thenthen a party may, 'at the earliest practicable practicable opportunity,' opportunity] 'file ... a written statement statement obiobjecting to 7 the ... Judge. Judge.' ' The he written itten sta tement must statement must 'set[ 'set[ ]] forth th the fa fact or or fa cts facts constituting the ground of of the disqualification of of such ... Judge,' and must be 8 served on the Judge. Within Within 'ten 'ten (1 (1 0) days after the service ... or ... filing of of any 9 statement, whichever whichever isis later later in time,' a Judge may file a 'written answer,' which which a must be 'verified in the manner manner prescribed prescribed for for the verification ofof pleadings.' If 10 the Judge opposes hishis own own disqualification, disqualification, then then 'the 'the question question of of the the... Judge's ... Judge's disqualification shall be be heard heard andand determined determined byby some other Judge.' 11 11 See Van Dox See Van Dox v. Ct., 2008 Guam 7 i!1117 v. Superior Cr., (internalcitations 17 (internal citations omitted). omitted). 12 12
In the same case, the Guam Supreme Supreme Court Court made made clear clear that that "with "with respect respect to the statutory 13 18
14 14 provision ovis ion requiring equ ir ing that ha t dis qu a lif ic a t ionbe disqualification b e urged r ged aat t he the ' ea'earliest r lies t p rpracticable a c t ic a b le
15 15 opportunity," the intention 'is clear that failure opportunity,' the failure to to comply with the provision constitutes
16 16 waiver."' Id. a waiver."' Id ,i 14040 citing v. Pac. citing Caminetti v. Mut. Ins. Pay. Mai. Ins. CO. CO of of Cal., 139 139 P.2d 930, 933 17 17 (Cal. 1943). Therefore, the the Court Court must must first first determine determine whether whether the the OAG waived their 1943). Therefore, 18 18 objection under 7 objection under 7 GCA GCA §§ 6107, 6107, and and then then determine determine whether whether there there is is an an appearance appearance of of 19 19 bias under under 77 GCA GCA §§ 6105. 6105. 20 A. Did Did the the OAG OAG Fail Fail toto File File atatthe the'Earliest 'Earliest Practicable Practicable Opportunity,' Opportunity,' and 21 Therefore Waive Their Statement Statement of of Objection Under Under 7 GCA 6107? 22 The Court answers this question in the affirmative. In Guam, in order to comply 23 wit withh 77 GC GCAA §§6107, 6107, disqua lifica ion must disqualification must be be ur ged aatt t the urged he "ea r liest practicable "earliest 24 opportunity." See Van Van Dox v. v. Superior Ct., Ct., 2008 Guam 77 1] 17 (emphasis ,i 17 (emphasis added). The 25 Guam Supreme Supreme Court Court takes this language language from aa California California case case and notes that an 26
27 Decision Decision and and Order Case Case No. CF0479-24, People People v. v. Benzfacio Benifacio Ranuk Page Page 6 of 14 14 1 "objection "objection was was waived waivedwhere where party party failed failed to to request request disqualification disqualification until three months months 2 2 af'er afte_r the the party party was was aware of of the the disqualgfj/ingfacts..." disqualifying " Id Id.atat'H, 45 45 citing citingCam Caminetti y. v. 3 Pac. Mai. Mut. Ins. Ins. Co. ofCaZ., of Cal., 139 139 P.2d P.2d 930, 930, 933 (Cal.1943) (emphasis (emphasis added). added). The The Guam Guam 4 Supreme Court also Supreme Court also notes notes that that aa "statement "statementmay maybe be untimely untimely if if a party waits until until the the 5 eve of oftrial trial totorequest request disqualification disqualification based on information information made made known known months months 6 7 earlier." Id Id.atat, 1146 46 citing citing People People v. v. Pariah, Panah, 107 P.3d 790, 824 824 (Cal.2005) (Cal.2005) (emphasis (emphasis 7 added). the case added). In the case before before us, us,AG AG Moylan Moylan knew about the the allegedly allegedly disqualifying facts facts 8
9 9 almost two decades decades in advance, advance, because becauseAG AG Moylan's Moylan's ex-wife ex-wifeDorris Dorrisremarried remarried Judge Judge
10 Tolentino in in 2005. 2005. Answer to Statement Statementof of Obj. Obj. at at 33 (Aug. (Aug. 5, 2024).
11 11 Further, AG Moylan Further, AG Moylan himself himself recognized recognized that that the "earliest possible opportunity" opportunity" 12 addressthe to address theallegedly allegedly disqualifying disqualifying facts facts was was almost almost two two years years ago, in in December December 2022, 13 13 before taking taking office, office, because because that's when then-Attomey then-Attorney Moylan chose to meet meet with with 14 14 JudgeTolentino Judge Tolentino and andwaive waive the theconflict. conflict. Id. Id at 2. AG AG Moylan Moylandoes does not not dispute this, and dispute this4, and 15 15 16 the meeting took place in front of witnesses, the meeting witnesses, including the Administrator including the Administrator of of Courts. Courts. Id. Id 16 17 It is is correct correct that the newly elected Attorney General that the sought to General sought to resolve resolve the the conflict conflict in 17
18 18 December December 2022 before taking taking office, office,because becausethere there are are massive massive administrative administrative concerns concerns
19 19 with disqualifying with disqualifying one one of ofthe the Guam Guam Superior Court's limited limited Judges from every criminal Judges from
20 20 case on the the island, island, and andany anycivil civil case chargedby case charged by the theOAG OAG as well. well. This This is is why why the the Guam 21 Supreme has cautioned Supreme Court has cautioned that thataaJudge Judgeshould shouldnot not"distance "distance themselves themselves from cases cases 22 at the slightest suggestion" suggestion" because "[a] Judge's because "[a] Judge'sduty dutytotohear hearaacase case and and keep the wheels 23 of ofjustice justice rotating rotating is just as strong as his strong as his or or her her duty dutyto to remove remove himself himself or herself herself if a 24 25 reasonable personwould reasonable person wouldnot notbelieve believe in his his or or her her impartiality." impartiality." Ada v. v. Guitierrez, 2000 25
26 4 Min. Entry at 9:48:01 AM (Mot. Hearing, Aug. 15, 2024). 4 Min. 9:48:01 AM Hearing, 2024). 27 Decision Decision and and Order CaseNo. No. CF0479-24, CF0479-24,People People v. v. Ben yfaeio Ranuk Benifacio Ranuk Page Page 77 of of14 1 Guam 22 22 at ,r,r 12-13. at 'W .12-13.With Withall allof ofthis this in in mind, mind, the the Court Court will will nevertheless address the
22 OAG's OAG's timeliness timeliness arguments. 3 AGMoylan's a. AG Moylan'sWaiver WaiverStill StillApplies, Applies, Even Even Though Though the the OAG OAG Filed this 4 Case in 2024 The OAG OAG maintains maintains that that they filed filed their their Magistrate Magistrate Complaint for this case in 5
6 August 2024, and that it is therefore therefore timely. People's Resp. to J. Tolentino's Answer to 6
7 Statement Statement of of Obj. Obj. 77 GCA GCA §§ 6107 6107 & & Mot. to Disqualify Mot. to Disqualify at 3, 3, (Aug. (Aug. 12, 12, 2024). In a more
8 typical situation, typical situation, the the Guam Guam Supreme Supreme Court has has held that "a statement of of objection is
99 normally timely if if it is submitted prior to to any any hearing hearing before before the the challenged challenged judge judge in the 10 matter." See Van Dox matter." See Dax v. v. Superior Superior Ct., Ct., 2008 2008 Guam ,r 46 citing Hollingsworth, 236 Guam 7711 46 11 ll Cal.Rptr. at Cal.Rptr. at 195-96 195-96 ((emphasis added). However, emphasis added). However, this this is is not not aa "normal" "normal" situation. situation. This Thisis 12 the Attorney General General of Guam. If If we disqualify disqualify Judge Judge Tolentino Tolentino from from hearing hearing cases cases 13 13 14 related ela t ed to t o AG M oyla we Moylan, we will will dis disqualify u qu a lify JJudge olent ino from TTolentino om Gu a Guam's entire 14 15 prosecution mechanism. 15
16 When the Guam Supreme Supreme Court Court laid laid out out the the normal normal timeliness timeliness standard, standard, stated
17 above, the Could llingsworth, but that California case involves a situation where Court cited Hollingsworth, where
18 18 a Defendant could not possibly predict that the Judge in question would hear the case 19 19 ahead of of time. See Hollingsworth, Hollingsworth, 236 Cal.Rptr. at 197 ("We End Cal.Rptr. at find itit unreasonable, unreasonable, as 20 well as impracticable, to require well as require presentation of of a statement of of disqualification disqualification until until it it is is 21 known which judge judge will will hear hear the case."). Unlike the Defendant in Hollingsworth, llingsworth, AG AG 22 Moylan knew that that Judge Tolentino Tolentino would hear hear AG AG Moylan's Moylan's cases, cases, because because Judge Judge 23
24 Tolentino is a Guam Superior Court Judge Judge and AG Moylan is the Attorney General of of 24
25 Guam. Guam.
27 Decision Decision and and Order Case No. CF0479-24, People People v. v. Benifacio Ranuk Page 8 of 14 Page 14 11 AG Moylanknew AG Moylan knewwell wellahead ahead of oftime timethat that Judge Tolentino Tolentino would be hearing hearing AG AG
2 Moylan's cases, Moylan's cases, which which is why AG AGMoylan Moylanhimself himselfasked asked Judge Judge Tolentino for for aa meeting 3 address the to address the countless, countless,potential potentialconflicts. conflicts.Answer Answerto to Statement Statementof ofObj. Obj. at at22 (Aug. (Aug. 5, 4 2024). Typically, Typically, the the timeliness timeliness requirement requirement should be "liberally construed" to promote 5 justice. See See Van Dax v. Superior Co., Dox v. 2008Guam7145 Ct., 2008 Guam 7 1] 45 citing citing Eagle Eagle Mains. Maint. & Supple Supple 6 v. Super. Co. v. Super. Cr., 16 Cal.Rptr. 745, 747 (Dist.Ct.App.1961). However, Ct., 16 However, again, again, when when the the 7
8 Court emphasizes Guam Supreme Court emphasizes this this liberal liberal construction, construction, they cite aa California California case
9 where, "it would place an undue hardship upon a litigant or his counsel to compel him
10 before the to know before the first first scheduled scheduled trial setting, whatjudge whai}udge would wouldbe be assigned assigned to try his
11 11 case in a particular particular department department of of the the court where the court where the trial trial date date has has been been set set over." over." Id. Id 12 12 emphasis added). (emphasis added). 13 13 The Guam SSupreme he Gua upr CCourt's our t 's nor ma l ststandard normal a nda clea r ly aapplies clearly pplies in aa t ypica typicall 14 14 situation, but situation, but the the case case before before us us is is not typical: typical: it involves the Attorney General. AG 15 15 Moylan clearly Moylan clearly knew knew "what "what judge judge would would be beassigned assigned to to try tryhis his cases," cases," because because the the 16 16
17 Attorney General represents the People, People, and and `the People inevitably try cases in front of the People
18 18 Superior Court Judge, every Superior Judge, including includingJudge JudgeTolentino. Tolentino.This Thisisiswhy whyAG AG Moylan Moylan met met
19 19 with Judge Tolentino back in December December 2022 to specifically address address Judge Judge Tolentino's Tolentino's
20 criminal docket, criminal docket, before taking office. Further, before taking Further, AG Moylan Moylan does does not notdispute dispute that that he he 21 purposely waived any potential purposely potential conflicts conflicts during during the the meeting. meeting.Min. Min. Entry Entry at at9:48:01 9:48:01AM AM 22 (Mot. Hearing, (Mot. Hearing, Aug. Aug. 15, 15, 2024). 2024). This This waiver waiverstood stood for forover overaayear yearand half. 5 The and aa ha1f.5 The AG AG 23
24 5 See Answer to Statement of Obj. at 6 (Jul. 29, 2024) citing People v. Balatico, Crim. Case No. CM0188-24; People 5 25 See Answer to Statement (Jul. 29, 2024) citing v. Balatico, Case No. CM0188-24; People v. Rosal, Rosal, Crim. Case Case No. CF0270-24, CF0270-24, and People v. v. Rik at, Crim. Case Rikat, No. CF0423-24 Case No. CF0423-24 and and Shane ShaneTenorio Tenorio Healy, Healy, "Akoma trial: Judge denies admission admission of of AG AG evidence", evidence", Marianas Marianas Variety, Variety, November November 23, 2023, 2023, Akoma trial: trial: Judge Judge 26 denies admission admission ofof AG evidence II News AGevidence News I Marianas Variety Variety News & Views (mvariety.com). lmvarietv.com). 27 Decision Decision and and Order Case No.No. CF0479-24, PeoplePeople v. v. Benzfacio Benifacio Ranuk Page Page 9 of of 14 1 cannot rescind the cannot rescind the waiver now. now. Countless Countless criminal criminal cases cases could could be be overturned, overturned, an an
2 2 outcome that would not "promote justice." justice." Van Dex Dox v. v. Superior SuperiorCr., Ct.,2008 Guam771]i! 45 2008Guam 3 citing Eagle Eagle Mains. Maint. & Supple Supple Co. Co. v. v. Super. Ct.,, 16 Super. Cr. 16 Cal.Rptr. Cal.Rptr. 745, 745, 747 747 4 (Dist.Ct.App.l96l). (Dist.Ct.App.1961 5 b. San San Augustin Augustin Does Not Not Justify OAG's OAG's Statement Statement of Objection 6 The OAG OAG claims claims that that the San San Augustin Augustin opinion opinion provides provides additional additional grounds grounds on 7
g which to require disqualification, "namely "namely the the Supreme Supreme Court's Court's explanation explanation and use use of of 8
9 9 its supervisory supervisory authority over the Superior Court of authority over of Guam's Guam's assignment assignment of matters matters to
10 10 disqualifiedjudges." disqualified judges."People's People'sResp. Resp. to to J. J. Tolentino's Tolentino's Answer Answer to to Statement of Obj. Statement of Obi. 7 GCA GCA
11 11 §§ 6107 & Mot. 6107 & Mot. to to Disqualify Disqualify at at 3 (Aug. 12, 3 (Aug. 12, 2024). 2024). The OAG also The OAG notes that also notes filed they filed that they 12 . . . . their Statement of Ob] Objection ectxonthe theday dayafter afterthe theGuam Guam Supreme Supreme Court Issued San Augustin. Court issued Augustin. 13 13 However,the Id. However, theGuam GuamSupreme SupremeCou1"r's Court's supervisory supervisory authority authority was was not not invented invented in in July 14 14 2024, 2024; it has been in use use for for decades. decades.See See People v. v. Angoco, 2006 Guam Guam18 ,r (holding 18129 15 15 16 that the Guam that the Supreme Court's Guam Supreme Court's supervisory supervisory power is intended intended to "address "address extreme extreme 16
17 cases, suchas cases, such aswhen whenthe theSuperior SuperiorCourt Couldisisacting actingininexcess excessof of its its powers."). Powers."). Further, Further, in
18 18 San San Augustin, the Guam Supreme Supreme Court Court addressed addressed"( "(1) 1) the the manner manner in which judges are
19 19 appointed to review appointed to review the denial denial of of disqualification disqualification requests, and(2) requests, and (2) the the rights rights of the
20 20 parties to briefing parties to briefing and andhearing hearingonce oncethe thereview reviewisisassigned assignedtotoaareviewing reviewingjudge judge..."San ... " San 21 . . . . , 1 . . . Augustin, ,r 34. Guam 22 1] Augusts, 2024 Guam 34.This involves judges Thls involves reviewing dzsqualy'icatzon judges revzewmg disqualification requests, requests, 22 not not the the disqualification itself. As disqualification itself. As such, such, San San Augustin Augustin does does not not apply apply to the the 23 disqualification disqualification issue before us. 24
27 Decision Decision and and Order Case No. No. CF0479-24, People People v. Benifacio ybcio Ranuk Page 10 o 10 14f 14 1l c. Aguon Aguon is Not Precedent, But Not Binding Precedent, But Even If It Was, It It Establishes Establishes Precedent for a Defendant, Not Not the the OAG OAG 2 Although San Augustin is not relevant to the case, the same cannot be said for 3 Aguon, g u on , the first instance where first instance where a trial court court disqualified Judge Tolentino because "a 4 5 reasonable person could question whether Judge Tolentino could be impartial in a case 5 6 6 proceeding at proceeding at the directionof the direction of[AG] [AG] Moylan." People of Guam v.v. Nakita of Guam Nikita T Aguon, Aguon,
77 CM0145-21 -2 1 at 88 (Su per. Ct. (Super. Ct. Gu a Guam. Apri Aprill 55,, 22024). 0 2 4 ). Thi s deci This not bibinding, s not si on i is decision ndi
8 however, as however, as itit was was not not issued issued by by the the Guam Guam Supreme Supreme Court. Court. Further, Further, the the objection in the objection in
9 9 case arose arose because becausethe theDefendant Defendantfiled filedaaMotion Motion for for Disqualification of Prosecutor Prosecutor (not
10 aa Statement Statement of of Objection under 77 GCA Objection under GCA §§ 6105) 6105) and and then then the the Defendant Defendant later later argued argued 11 11 during ri ng a heari ng on March hearing March 11,, 22024, 0 2 4 , that that "there "there had had been been an an uundisclosed ndi scl osed fami familial 12 12 relationship between relationship betweenJudge JudgeTolentino Tolentinoand andDouglas DouglasMoylan ... " Id at Moylan..." at 4-5. 4-5. Therefore, the the 13 13 holding in Aguon does not apply apply to to objections objections by by the the OAG, objections OAG, but instead to obi actions by by 14 14
15 15 a Defendant. Even Even if Aguon g precedent, AG Moylan cannot make the was binding precedent, the
16 16 preposterous claim preposterous claim that there there has has been an "undisclosed familial relationship" between
17 Judge Tolentino Judge Toléntino and and himself. himself. AG AG Moylan Moylan has has known known about about this this relationship relationship for twenty for twenty
18 18 years and, unlike years and, unlike the the Defendant Defendant in in Aguon, AG Moylan waived AG Moylan waivedthe the relationship relationship in in 19 19 December 2022. 2022. 20 d. AG AGMoylan's Moylan'sWaiver WaiverisisofofParticular Particular Concern, Concern, Given Given that the OAG OAG 21 May May be be Attempting Attempting to Manipulate Manipulate the Criminal Criminal Justice System Finally, the fact that AG Moylan waived waived the the conflict conflict and and then seems to have 22 23 23 rescinded that waiver is of particular concern, concern, because because the the Guam Guam Supreme Court makes
24 it clear it that 77 GCA clear that GCA §§ 6105 6105 "is "is not not intended to 'bestow intended to veto power 'bestow veto judges or over judges power Over or to to be be
25 25 used as aajudge judgeshopping shoppingdevice.'" device."' San Agustin v. v. Superior Court Court of Guam, 2024 Guam ofGuam, 26 ,-i 24 2 1] 24 (quoting (quoting People People v. v. Camaddu, Camaddu, 2015 2015 Guam 2 1] ,-i 80 80 (quoting (quoting Nichols Nichols v. v. Alley, 71 71 27 Decision Decision and and Order Case No. CF0479-24, People People v. v. Beny'acio Benifacio Ranuk Ranuk Page Page 11 of14 of14 1 F.3d 347, 351 351 (10"* th Cir. 1995) (per Cir. (per curiam); curium), cf cf Ada, Ada, 2000 Guam 22,r121 ("We Guam22 ("We do not 2 2 want to open a Pandora's Pandora's box in which parties begin drawing a judge's judge's family tree each 3 time it seems that a judge judge will mle rule against against therm."). AG Moylan them."). AG Moylan did not question his own 4 Tolentino, until waiver with Judge Tolentino, until a year-and-a-half into into AG AG Moylan's tenure, tenure, when 5 Judge Tolentino issued a major decision decision with with which which AG Moylan seriously disagreed. 6 In that case, in the first decision to ever address a Statement of Objection by the 7
8 OAG regarding AG Moylan's Moylan's relationship relationship with with Judge Judge Tolentino, Tolentino, the the Honorable Honorable Maria
9 T. Cenzon notes that the timing timing of the OAG's Objection Objection is is "suspect "suspect because it comes on
10 10 the heels of Judge Tolentino's Decision Decision and and Order Order issued issued on on April April 25, 25, 2024, 2024, granting
11 11 Defendant Sablan's Motion Defendant Sablan's Motion to to Disqualify the Office Disqualify the Office of the the Attorney Attorney General General and and 12 12 mandating mandating that a special special prosecutor prosecutor be appointed." appointed." People of of Guam Guam v. v. Richard Richard K Y 13 13 Yabnez, et. al, Yabnez, et. al, CF0447-23 at 21 (Super. Ct. Guam. June 12, 2024). 2024). Since then, and only 14 14 a few weeks after filing the Statement of Objection in this case, AG Moylan published 15 15 an op-ed op-ed in Pacific Pacu'ic Daily News, confirming that News, confirming that he he seeks seeks to overturn overturn his own own 16 16
17 disqualification by Judge disqualification by Judge Tolentino Tolentino in the very case noted by the Honorable Maria T. 17
18 18 Cenzon:
19 We are concerned concerned that the Guam trial courts are engaging in Judicial Activism Activism and re-writing Guam law that expressly re-writing Guam expressly requires requires that the Guam Guam Attorney Attorney 20 General be the public prosecutor and to provide legal services to government officials who are only stewards stewards of of the People, and are are not the People of Guam, 21 by using "ethics rules" to disqualify this elected AG. 22 I believe believe itit is is wrong wrong and and we will seek we will seek to have itit corrected either either in this court or 6 23 higher highercourts. courts.6
25 6 6 Attorney General Attorney General Douglas Douglas Moylan, Moylan, "LETTER: "LETTER:Court Courtdecision decisioninterferes interfereswith with elected elected AG's AG's ability ability to to fight corruption", corruption", PacIfic News, June 2, 2024, Pacific Daily News, 2024, LETTER: Courtdecision LETTER: Court decisioninterferes interfereswith with elected elected AG's AG's ability ability to to fight fight 26 corruption IIOpinion Opinion II guampdn.com. guampdn.com. 27 Decision Decision and and Order Case Case No. CF0479-24, People v. CF0479-24, People v. Benifacio Benifacio Ranuk Ranuk Page 12 of 1414 11 The Court cannot discern if AG Moylan started disqualifying Judge Tolentino, because, 2 as AG Moylan as Moylan writes, writes, he is is "concerned "concerned that that the the Guam Guam trial trial courts courts are are engaging engaging in in Judicial Judicial 3
4 wishes to Activism" and he wishes to rind find aa better better outcome outcome with with different different Judge. Judge. These These circumstances circumstances 4
5 Moylan's sudden surrounding AG Moylan's suddenobjection objectionagainst against Judge Judge Tolentino, Tolentino, after after aa year-and-a-half year-and-a-half of of
66 objecting, inform not objecting, inform our decision about the waiver, because because the the Court should seek to avoid
7 "outcomes which lead to "outcomes to the the manipulation manipulation of of the the criminal criminal justice justice system." system." See People People v.
8 Camaddu, ,r 80 (stating that if a trial Guam2211 Camaddu, 2015 Guam trial court court recused refused itself "every "every time it receives
99 unsolicited material uncomplimentary uncomplimentaryto to aa defendant defendantprior prior to to trial trial or sentencing [it] would create 10 10 . . _ . . . . . _ . ,, an intolerable situation sltuatlonwhich whlch could could lead leadto to aamanipulation mampulatlonofof the thecriminal cnmlnaljustice justicesystem."). system. ). For 11 reason, and this reason, and all all of of the the reasons reasons above, above, the the OAG's OAG's waiver waiver should should be be treated treated as as aa failure to file 12 12 at the "earliest at the "earliest practicable practicable opportunity" opportunity" Linder under 77 GCA GCA §§ 6107. 6107. 13 13 B. Does Does Judge Judge Tolentino Tolentino Have Have aa Disqualifying Disqualifying Relationship Relationship that Creates Creates the 14 14 of Bias' Under 7 GCA 6105? 'Appearance of
15 15 The Court declines to answer this question definitively. Given the waiver under
16 16 77 GCA GCA §§ 6107, 6107, it is not it is necessary for not necessary for the the Court Court to to reach reach the the alleged alleged bias bias under under 7 7 GCA GCA 17 6105, because 6105, because the objection is the objection is procedurally procedurally defective. defective. However, However, given recent given the recent 18 18 revelations in Aguon, Defendants are not precluded precluded from from raising their objections. Only 19 19 the OAG is precluded. 20
27 Decision Decision and and Order Case No. CF0479-24, People v. Benifacio Ranuk Page Page 13 of14 14 11 CONCLUSION CONCLUSION AND AND ORDER 2 For the the above above reasons, reasons, the the Court Court DENIES the the OAG's OAG's Statement Statement of of Objection Objection and and 3 4 declines to disqualify the Honorable Honorable Alberto E. E. Tolentino. Tolentino. The TheCourt Courtreturns returns this this case to the the 4 5 Honorable Alberto E. Honorable Alberto E. Tolentino. 5
7 so SO ORDERED, ORDERED, this q ti this -~l__ day of A { 2? 2 *"' day of_/J_4-+-t
10 HC RABL JOHN c. TERLAJE 11 Judge,Sup@ or Court of Guam 12 12
14 14 SERVICE VIA E-MAIL aclmowledge that I acknowledge that an original_),Vas original as ~ailed ailed to: to' 15 15 HK. /In, I58% i'PfC Date$74 ' e7-'U 1 16 Date~~e1 1~ H/I<~.GI~ - 1 J Z kA A Depufy Ger Deput Oerk,m,Superior uperi CourtRfolGuam Guam 17
18 18
19 19
27 Decision e c i s o n and Order Case No. N CF0479-24, C People l e vv. Benifacio z f a c i o Ranuk Ra Page 14 of 14