impractical to enforce, (b) negatively impact impact -the efficient administration of justice, and (c) lead the efficient
to judge-shopping and/or overburden other judges judges in in the the same same court." court." Id Id at 17.
Finally, on July 18, 2024, 2024, the the Supreme Court of Guam issued an Opinion in In re Arthur
San Agustin U San Agustin v.v. Superior Superior Court Court of ofGuam, et al., al., 2024 Guam Guam 2, disqualifying Judge Tolentino in
that matter, matter, but but on grounds that are are unrelated unrelated to his relationship relationship with Moylan. Moylan. The Supreme Supreme
Courtt of Gua Guam noted noted tha thatt they they fir first issued their st issued their Or Order disqualifying der disqua Judge TTolentino lifying Judge olentino on
5, 2023, December 5, 2023, but but stated stated that that their their July July 18, 18, 2024 2024 Opinion Opinion supersedes supersedes that that Order. Order. San San
Agustin, Guam 22 at Agustin, 2024 Guam ,r 8.8. The at 1] The San San Agustin Court noted that Judge Tolentino had previously
himself in that matter because "he, his wife, and his chamber disqualified himself chamber clerk have or had close
[a real party in interest], concluding this could create relationships with San Agustin and Nadeau, [a
,r 4.4. The a conflict." Id atat 1] The matter matter was was then then reassigned reassigned to to the the Honorable Presiding Judge Alberto
Lamorena III, C. Larnorena III, and and the the defendant objected to Presiding Judge Lamorena presiding over the
matter. Jd matter. ,r 5.5. The at 1] Id at The issue issue of of Presiding Presiding Judge Judge Lamorena's Lamorena's recusal was then assigned to Judge
Tolentino, and Judge Tolentino issued a Decision Tolentino, Decision and and Order Order concluding concluding that that Presiding Presiding Judge
Lamorena was not not disqualified. ,r 6.6. Ultimately, disqualified. Id atat 11 Ultimately, the the Supreme Supreme Court Court of Guam held that that
4 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0419-24; CF0419-24; People People of ofGuam Guam v. v. Peter Peter Pangelinan Pangelinan Reyes Jr. Reyes Jr.
because beca us e Judge udge Tolentino olent ino had ha d disqualified qua lified himself hims elf in in the underlying he under lying matter, t er , he he was aalso ls
disqualified from sittingas tom sitting as the the recusal recusal judge judge and, and, therefore, therefore, vacated his decision and disqualified
from the him from thematter entirely.IdIdat at matterentirely. ,r,r 40, 54. The San 1111 San Agustin Agustin Court clarified clarified the proper proper
when aa party seeks to'challenge procedure when tO' challenge aa recusal judge for for cause. Id. ,r at 1]34. Id at
PROCEDURAL BACKGROUND
The instant matter matter was was initiated initiated on on June June 20, 20, 2024, 2024, when when the filed an the OAG filed an Indictment Indictment
against Peter against Peter Pangelinan Pangelinan Reyes Reyes Jr. Jr. ("Defendant") ("Defendant") for for Possession Possession of a Schedule Schedule II II Controlled Controlled
Substance ( A s a 3rrdd Degree ubst ance (As D egr ee Felony). F el ony) . On On August 1, 1, 2024, 2024, tthe he mat er wwas matter as assi assigned tto Judge Judge
Tolentino.
On August 2, 2024, the OAG filed their their Objection, Objection, stating stating that "disqualification of Judge
Tolentino from Tolentino from this and any other other matter involving Moylan is is required" required" due due to to their their familial familial
relationship. Objection relationship. Objection at at 7. 7. The argues that The OAG argues that "[a] reasonable reasonable persoN person would presume that that
Judge dge TTolentino's i no' s personal er s ona l relationship r el a t i ons hi pwith wi t h [AG] [ AG ] Moylan M oyl a n and a nd his pprior ri years sspent yea p ent
disqualifying himself disqualifying himself from matters involving Moylan would from any matters would raise raise aa reasonable reasonable question question
impartiality and about his.impartiality and necessitates necessitates his his disqualification." disqualification." Id. at 6. Id at
The Court notes that the the OAG has has filed filed numerous identical objections to Judge Tolentino
over many presiding over many criminal matters. 1 However, the criminalrnatters.1 the Court Court takes takes judicial notice2 of judicial noticed of the fact fact that,
1 1 This Court has been This Court been assigned assignedtotohear hearthe therecusal recusalof JudgeTolentino ofJudge Tolentinoin inseveral severalcases casesininwhich whichthe theOAG OAG has filed has filed identical identical statements statements of of objection, objection, including, including, but not not limited limited to, to, the thefollowing: People of following: People ofGuam Guam v. Mark Anderson Mark Anderson Pauli Paulino, CF0482-24 (Super. ro, CF0482-24 (Super. Ct. Guam JulyJuly 30, 30, 2024), 2024); People of of Guam Guam v. v. Jamielynn Jamielynn Cabrera, CF0439-24 Pangelinan Cabrera, CF0439-24 (Super. (Super. Ct. Guam July 30, 30, 2024), and People 2024); and People of of Guam v. v. Brian Brian Jake Cepeda Alano, CF04l CF0411-24 (Super Ct. Guam July 1-24 (Super July25, 25, 2024) 2024). 2 Guam Rules of Evidence ("GRE") ("GRE';) Rule 201 governs judicial notice of of adjudicative facts. facts. "A judicially noticed fact must be one not subject subject to reasonable dispute dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." GRE 201(b).
5 I
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04]9-24; CF0419-24; People of ofGuam v. Peter Pangelinan Reyes Jr. Jr.
to date, the the OAG has not filed objections in all of of its cases before Judge Tolentino, and instead is . . . 3 in certain matters. 3 proceeding in
response to In response to the OAG's OAG's Objection, Objection, Judge Tolentino Tolentino issued his Answer on August August 5,
that his disqualification 2024, denying that disqualification was required in in this this case. Answer atat~ case. Answer of 1135. In support of
position, Judge Tolentino his position, Tolentino cites cites to meeting tha to the meeting that he he aand Moylan nd Moyla had n ha regarding d r ega their r ding their
potential conflict, and the fact that Moylan Moylan stated that he he perceived perceived no disqualification. Id. ~ at 1]7. Id at
Further, Judge Further, Judge Tolentino states states that that the the Moylan Moylan Children have "reached majority and adulthood
and have been residing at their their own own residences." residences." Id. Id
This matter was assigned assigned to this Court on August 5, 2024, for the limited to this limited purpose purpose of of
recusal. On August 6, 2024, the Court issued an Order deciding Judge Tolentino's recusal. Order for for Further Further
Briefing, requiring the OAG to explain their position on whether the OAG has objected to Judge
cases "involving Tolentino presiding over cases "involving Moylan" Moylan" atatthe theearliest earliestpracticable practicable opportunity, as opportunity, aS
required by Title 7, Guam Code required Code Annotated Annotated ("GCA"), ("GCA"), Section Section 6107, 6107, considering considering Moylan has
been in office office since since January January 2023. 2023. The Court Court permitted, but did not not require, require, the Defendant to
respond to the same question. question. The Defendant filed filed a Response Response to Government's Statement Statement of of
Objection Objection on August 9, 2024, 2024, stating stating that that (1) (1) the the factual factual claims claims put put forth forth in in the OAG's OAG's Objection Objection
not Constitute do not Constitute aa disqualification; disqualification, (2) (2)the the Defendant Defendant waives waives any any conflict; conflict, and and (3) (3) the the OAG
failed to object at the earliest practicable practicable opportunity opportunity and and therefore therefore has has waived any conflict. On
33 According According to to the the Superior Court Court ofof Guam's Guam's Weekly Weeldy Calendar for the weekweek ofof August August 26, 26, 2024, 2024, Judge Tolentino continues continues to have a full calendar of of cases moving forward which list the OAG as counsel. Judge Tolentino Tolentino remains remains scheduled to hear hear progress progress hearings, hearings, status status hearings, hearings, further further proceedings, proceedings, motion hearings, pre-trial conferences, change of pleas, return hearings, pre-trial conferences, change of pleas, return of warrants, warrants, and jury selections and trials and jury selections trials in criminal matters involving the OAG. The Superior Court of Guam's Weeldy Calendar Weekly Calendar is posted publicly on the Judiciary Judiciary of ofGuam's Guam'swebsite, website,available availableatathttps://www.guarncourts.org/Calendar/images/Weekly- https://www.guamcourts.org/Calendar/images/Weekly- AET.pdf.
6 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0419-24; CF0419-24; People People.of ofGuam v. Peter Pangelinan Pangelinan Reyes Jr. Reyes Jr. )
August 12, August 12, 2024, 2024, the the OAG OAGfiled filedtheir theirResponse, Response,arguing arguingthat thattheir theirobi objection timely. 4 was time1y.4 section was
DISCUSSION
77 GCA GCA §§ 6105 6105 provides provides the the substantive substantive grounds grounds for for judicial judicial disqualification in Guam. disqualification in Guam. 77
GCA GCA §§ 6105(a) 6105(a) states in full: states in full:
shall disqualify himself Any Judge shall herself in any proceeding in himself or herself which hishis or or her her impartiality impartiality mightmight reasonably be questioned, but if, following complete disclosure disclosure to all all parties in the proceeding of of the reasons reasons forfor disqualification, disqualification, all all parties parties agree to to .having _having the Judge udge continue inue to. t o sit s it in in the t he proceedings, pr oceedings , hehe or or she not he need not disqualify himself himself or herself.
When grounds When grounds for for disqualification exist, 77 GCA disqualification exist, GCA §§ 6106 6106 requires requires aa judge judge to to disclose disclose any any
facts that facts that disqualify him under Section 6105. If a judge disqualify him judge fails fails to to declare declare his his disqualification disqualification as as
required, any party may file a statement of of objection, setting setting forth forth the facts facts constituting the
grounds of judge. 7 GCA § of disqualification of such judge. § 6107. 77 GCA GC A§§ 6107 mandates, in part: *n
The statement of a party objecting objecting to to the Justice Judge on the Justice or Judge ground of his ground his or or her herdisqualification disqualification shall shall be be presented presented at the opportunity after his or her earliest practicable opportunity her appearance appearance and and discovery of the facts constituting discovery constituting grounds gr ounds ofof the Justice's or the Justice's Judge's disqualification, and in any event` event befor before the commencement commencement .of _of the hearing of any issue ofof fact in the action or proceeding proceeding before such such Justice or Judge.
77 GGCA C A §§6 16107 0 7 (emp ha s is a added). (emphasis dded). IfIfa ap aparty r t y fafails ils t otoobobject ject a tatt he the"ea"earliest r lies t p rpracticable a ct ica b le
opportunity" after discovery opportunity" after discovery of of the the facts facts which disqualify disqualify aa judge, judge, that that failure failure "constitutes "constitutes a
waiver."" Van Dox Dox v. v. Superior Court Court of ofGuam, Guam, 2008 2008 Guam Guam77145. 1145. As As such, when when aa party remains
silent silent on on aa known known disqualification disqualification pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105(a), the the party party waives waives their their right right to to
· later object to the judge judge presiding. People 0f of Guam v. Win, Wia, 2020 Guam 17 1]28. 17128.
"The rule rule that that a request for disqualification should be submitted prior to any hearing in
44 The The OAG's OAG's Response Response did not raise any any new arguments not not stated stated in in their their Objection. Objection.
\ DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04]9-24; CF0419-24; People of ofGuam v. Peter Pangelinan Reyes Jr. Jr.
the matter before before the the challenged judge judge 'rests on the the principle principle that a party may not gamble on a
favorable decision' .... Thus, a statement of objection is normally timely if favorable if it is submitted prior
to any any hearing hearing before before the the challenged challenged judge in in the the matter." matter." Van Van Dex, Guam 77 1],r 46. Dox, 2008 Guam
( (emphasis added) (citing an exception to an exception that that itit is is not not appropriate appropriate to wait until the eve of of trial to
reques,t disqualification based on information known months request months earlier). earlier).
Importantly, the Importantly, the recusal recusal statute statute"is "is not not intended intended to to 'bestow 'bestow veto power over judges or to
be used used as as a judge shopping ,r 24 shopping device."' San Agustin, 2024 Guam 2 11 24 (quoting People v. v.
Camaddu, 2015 Guam Camaddu, ,r 80). Guam 2 1] 80). Likewise, courts should should avoid avoid outcomes which lead outcomes which lead to the
manipulation of the criminal justice system. See Camaddu, Camaddu, 2015 Guam ,r 80 Guam 22 'H 80 (stating (stating that if a
trial trial court court recused itself "every reused itself "every time time ititreceives receives unsolicited unsolicited material material uncomplimentary to a uncomplimentary to
defendant prior to trial trial or sentencing [it] [it] would create an intolerable situation which could lead
to a manipulation manipulation of the the criminal criminal justice system."); system."):
1. The The OAG OAG Failed to Object at the Earliest Practicable Opportunity Opportunitv
As noted, even even when when aa judge judge fails fails to to disclose disclose any any potentially potentially disqualifying disqualifying facts, facts, aa party
may object may object to to aa judge judge presiding presiding pursuant pursuant to to GCA GCA §§ 6107 but must 6107 but must do do so so at at the the earliest earliest practicable practicable
opportunity after discovery of the facts facts constituting constituting the the ground ground of the the judge's judge's disqualification disqualification or
else that party poNy waives waives their right to to bring bring an an objection. objection.
Here, although Judge Tolentino did not not disclose disclose any any facts, facts, the OAG was was still still required to
bring its objection as soon as as possible possible after discovery of of the the facts. facts. The Court Court understands understands the
OAG's OAG's position position to be that Moylan is generally generally involved involved in in the the OAG's cases, cases, even if he is not
lead counsel counsel on on aa matter. matter. The The OAG OAG cites to to Judge Judge Iriarte's Iriarte's. Decision Decision in in Taitingfong Taitingfong, in in which which she she
wrote, wrote, "Deputy Attorney Attorney General General Gloria Rudolph clarified that Attorney clarified that Attorney General General Moylan is
consulted on general case strategy general case strategy and andplea pleaagreements agreementsand andthat thatititwould would be be incorrect incorrect to say that
8 ( DECISION AND CfRDER DENYING OAG'S ORDER DENYING 0AG'S STATEMENT OF OBJECTION CF0419-24; CF0419-24; People People of ofGuam Guam v. v. Peter Pangelinan Pangelinan Reyes Jr. Reyes Jr.
he is not personally involved in this case." Objection at 6. Given that Moylan is the head of of the
OAG, and that he is involved in matters which the OAG OAG prosecutes, prosecutes, the OAG was aware of of the
facts regarding Moylan's facts Tolentino's relationship Moylan's and Judge Tolentino's relationship by by January January 2023.
Despite of Judge Tolentino's Despite being aware of Tolentino's and and Moylan's Moylan's relationship relationship by by January January 2023, 2023,
the OAG argues argues two primary reasons reasons for why its Objection was timely: (1) because because the OAG
filed its Objection prior to to Judge Judge Tolentino hearing the matter and only two weeks after after the case
was initiated, initiated; and (2) because the Supreme Court of Guam issued an Opinion in San Agustin on because the
on which July 18, 2024 which provided additional grounds on which to to require require disqualification. disqualification. Objection
at 5.
A. The CCourt VViews the O OAG's AG O Objection bj io n in tthe CContext o nt oof f JJudge udg Tolentino's Relationship with Moylan Movlan
First, the cites tto Van Dox, quoting in part, that a statement he OAG cit statement of obi action is objection
"normally" timely when when submitted submitted prior prior to a hearing by the challenged challenged judge and and also also that the
timeliness requirement should be "liberally construed" to promote justice. Response timeliness Response at 2. The
OAG provides provides an an accurate accurate timeline of of the the procedural procedural posture posture in in this this matter, matter, including that the
OAG filed filed its its Objection Objection only one day day after after the the matter matter was was assigned assigned to to Judge Judge Tolentino Tolentino and and
before Judge Tolentino ever ever set the matter to to be heard. Id. be heard. Id at at 3.
However However, , despite des p it e the t he C ourt's r t 's Order der that ha t the he OAG OAG ex p la in whet explain her itit bbrought whether r ou ght ititss
Objection at the earliest practicable practicable opportunity, opportunity, "considering "considering Attorney Attorney General Moylan has been
in office office since January 2023," the January 2023," the OAG failed to address address the timeline of of its its Objection Objection in the
broader context of broader context of the the history history between between Judge Judge Tolentino Tolentino and and Moylan Moylan..In doing so, .. In doing so, the the OAG
seemingly seemingly would would have have the the Court Court view view this this matter matter as as an an isolated isolated objection objection rather rather than in the larger
context ofMoylan's Moylan's relationship with Judge Tolentino.
Thus, hus, the the Court must fir st analyze first whether it is analyze whether is appr iate to appropriate to view this this matter matter in
9 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04./9-24; J9-24; People of of Guam v. v. Peter Pangelinan ReyesJr. Jr.
isolation or to isolation or to consider consider the larger context context of the history history of of the the relationship relationship between Judge Judge
Tolentino Tolentino and and Moylan Moylan since sinceand andprior priorto toJanuary January2023 2023. ' \
i. The Van Dox Dex Standard Standard Is Not Applicable
When the When the Supreme SupremeCourt Courtof ofGuam Guamannounced announcedininVan VanDex Doxthat thata astatement statementofofobi section is objection
"normally timely if it is "normally timely is submitted submitted prior to any hearing prior to hearing before the challenged judge in the challenged judge the
matter," it cited a California case in support: Hollingsworth v. v. Superior Court, Court, 191 191 Cal. App. 3d ad
22, 236 Cal. Rptr. 193 (Ct. App. 1987). In Hollingsworth, 22,236 llingsworth, the California Court of Appeals found
that counsel presented presented its its statement s_tatement of ofdisqualification disqualification atat the theearliest earliestpracticable practicable opporttuiity opportunity
because the case had only recently been been assigned assigned to. the challenged judge, to the judge, and the Court found
that it would be unreasonable and impracticable to require a party to challenge a judge prior to
knowing knowing which which judge judge will will hear hear the matter. Hollingsworth, llingsworth, 236 Cal. Rptr. 193, 196.
Further, ther , when when the the Va Van Dox Dox Cour Court wr ote tha wrote thatt the the timeliness timeliness rrequirement equir should should be
"liberally "liberally construed construed to promote promote justice," justice," itit cited to another another California case: Eagle Maintenance &
Supply Co. v. Superior Court, Court, 16 16 Cal. Rptr. 745 (Dist. Ct. App. 1961). In that case, the California
Court of of Appeals notes that the matter had been assigned assigned to aa department department of of the the superior superior court,
but not yet to a specific judge. Eagle Maintenance, Maintenance, 16 16 Ca. Rptr. 745, 745, 747. 747. Thus, Thus, the the court stated, stated,
"it would would place place an undue hardship upon a litigant or his his counsel counsel to to compel him to know before
the first scheduled scheduled trial setting, setting, what what judge judge Would would be assigned assignedto to try try his his case case.... .. 179 " IId
Thee llogic o g i in n HHollingsworth o l l i n g s wo r t h aand n d Eagle Eagle Maintenance Maintenance whic whichh ma nda t es aa lib mandates er a l liberal
construction of the timeliness standard does not apply to the unique situation situation before this Court.
While OAG ma While the OAG mayy not not ha ve known have known tha t Judge that ssigned the be aassigned would be olehtino would Judge TTolentino the aabove- bove-
captioned matter, matter, it was aware by January January 2023 that that .Judge Tolentino would Judge Tolentino would be assigned assigned some
10 DECISION AND ORDER DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF OF OBJECTION CF04]9-24; CF0419-24; People of ofGuam v. Peter Pangelinan Reyes Jr.
cases involving cases involving the the OAG, OAG, considering considering Judge Judge Tolentino Tolentino isis one one of of four four criminal judges5 in the criminaljudges
Superior Court of Guam Guam and and the the OAG files aasignificant OAG files significantnumber number of ofcriminal criminalcases. cases. Further, Further, the
facts that facts that give give rise rise to to the the OAG's remained the OAG's Objection have remained the same same since since prior prior to to January January 2023
and remain the same in all all cases involving Judge Tolentino Tolentino and and Moylan. Moylan. Therefore, Therefore, this is not a
circumstance in which a party must wait to see which judge is "normal" circumstance is assigned assigned and then, if if
there is a conflict, conflict, challenge challenge that judge. judge.
Instead, a more relevant case to review in this matter is People of of Guam v. v. Win. Wia. There,
the he PPublic Defender Service lic Defender vice Corporation or p or a t ion ("PDSC") ("P DS C ")had ha d raised r a is ed the t he issue is s u e of of the ju dge's judge's
disqualification previously disqualification previously in in other cases. cases. Win, Wia, 2020 Guam 17 17 1] 27. The ,i 27. The Supreme Court of of
Guam found Guam that the found that the defendant defendantwas was a":'are aware of the conflict through his counsel's involvement in of the
the other cases, cases, and and the the fact fact that that they they remained remained silent in Win rendered his Wia rendered his objection waived and
untimely. Id untimely. Id
Wia, this matter Like in Win, matter is is more more appropriately appropriately viewed in its viewed in its broader broader context regarding the
ofthe parties' previous knowledge of the facts. facts. Here, Here, the the broader broader context context requires requires the the Court to to review
Judge Tolentino's Tolentino's and and Moylan's Moylan's relationship relationship as as well well as as the OAG's OAG's conduct conduct in in other other cases cases before
Judge Tolentino.
ii. Viewing Viewing this this Matter Matter in in Isolation Isolation Would Would Permit Permit Outcomes Outcomes Contrarv Contraryto tothe the Recusal Recusal Statute's Statute's Intended Intended Purpose
The recusal statute shall not statute shall not be be construed construed to to permit permit judge-shopping, judge-shopping, to to bestow bestow veto power
over judges, or to permit manipulation of the criminal justice system. San Agustin, 2024 Guam 2
,i 24; 1] 24, Camaddu, Camaddu, 2015 Guam ,i 80. Guam 2 1] 80. Thus, Thus, the the Court Court must attempt to avoid these these undesired undesired
outcomes. outcomes
5 5 PursuanttotoSupreme Pursuant SupremeCourt Courtof ofGuam GuamAdministrative AdministrativeRule RuleNo. No. 23-002, 23-002, in addition to the four criminal criminal judges in the Court of Guam, the Superior Court Guam, the Supreme Court of Guam Supreme Court Guam created Court 8, which is comprised comprised of ofboth both criminal criminal and and non-criminal cases. cases. Court 8 is assigned to to the the Honorable Honorable John JohnC.C.Terlaje. Terlaje.
11 11 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04I9-24,' CF0419-24; People People of Guam v.v: Peter ofGuam Peter Pangelinan Pangelinan Reyes Reyes Jr.
First, First, if the Court disqualified Judge Tolentino in in all all cases cases in in which whichthe theOAG OAGfi1es.9;n files. an
objection but allowed Judge Tolentiho Tolentino to sit on any matter in which the OAG did not obi act, it object,
would create a system in which the OAG could could cherry-pick which cases to disqualify Judge
Tolentino. Allowing the OAG OAG tO to determine which cases it will permit Judge Tolentino to sit on
would would clearly clearly promote promote judge=shopping. judge~shopping. See In re Takeno, Takano, No. BR BR 115-00108, 5-001 2016 WL 77384603 38
(D. Guam Dec. 19, 2016) (opining (opining that that allowing allowing a par party to to "chen'y-pick" "cherry-pick" which ca cases to
· disqualify a judge judge from from would promote judge-shopping). Unlike a criminal defendant, who is a
different individual in each case case with the right to decide whether whether to object object to aa judge presiding,
the OAG represents represents the People of Guam. Because the People of of Guam cannot cannot object to Judge G
over certain criminal matters but not others, disqualifying Tolentino presiding over disqualifying Judge Judge Tolentino in
some but but not all cases, without further thither explanation, is inappropriate.
Likewise, permitting the OAG OAG to to sit sit on on known known facts facts for for months months and and then then raise raise those facts facts
at any given time to disqualify Judge Tolentino could bestow a veto power on the OAG and
allow the manipulation of the judicial system. For example, the OAG could, theoretically, hold
these facts facts over Judge Tolentino's head with with the the constant constant threat threat of of raising them in all all his cases cases
after after any unfavorable decision. In unfavorable decision. In other other words, words, the the same same logic that that prevents prevents a party party from from
disqualifying a judge disqualifying judge after an unfavorable unfavorable decision in aa particular particular case likewise prevents the
OAG OAG from disqualifying aa judge after an unfavorable unfavorable decision in any case case involving involving the OAG.
Without speculating speculating about about the the OAG's OAG's motive to bring these recently filed objections or
why itit has objected in some some cases cases but but not not others, others, the the fact fact that the possibility exists that the the OAG
could use m~e these strategies strategies to forum-shop or manipulate the judicial system system necessitates necessitates that the
he OAG's C ourtt view tthe OAG's object ions br objections oa dly, rrather broadly, a t her t ha n in in isola isolation in t the t ion in he inst a nt ma instant t t er . matter.
Consequently, the Court declines to End find that the Objection Objection was was brought brought atat the the earliest earliest practicable
12 12 / DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04]9-24; CF0419-24;People PeopleofofGuam Guam v. v. Peter PeterPangelinan Pangelinan Reyes Jr. Reyes Jr.
opportunity oppor tunity solely solely because beca use it wass filed it Wa omptly after filed promptly fter the ma tter wa matter wass -assigned ssigned to to Judge Judge
B. The The Supreme Court of Guam Issuing Its Opinion in San San Agustin Does Does Not Justifv Justify the OAG's OAG's Failure Failure to to Object Object atatthe theEarliest EarliestPracticable Practicable Opportunitv Opportunity
OAG argues The OAG argues that that their their Objection Objection is timely timely because because itit was was filed filed shortly shortly after after the the
Supreine Court of Guam issued its Opinion in San Agustin on July 18, Supreme 18, 2024, and San Agustin
provided additional provided additional grounds grounds on which which t to require o r equir disqualification. e dis qua lifica t ion. The T he OAG aargued r gued tthat ha
]mploying the "[e]mp1oying the approach approach set set forth forth by by the Supreme Supreme Court, Court, Le., i.e., knowing' all all the facts facts and and
understanding the context involving Judge Tolentino's history of Tolentino's history of disqualifying himself himself where the
AG was involved, it is clear that Judge Tolentino is a disqualified judge in any case where AG
Moylan is involved. involved. The basis for for Judge To1entino"s Tolentino's prior disqualification hasn't changed." disqualification hasn't 77
Objection at Objection at 5.
San Agustin is distinguishable from the instant instant matter matter for for several several reasons. reasons. First, First, that case
address whether an did not address an appearance appearance of of bias exists exists based on Judge Judge Tolentino's Tolentino's relationship relationship
with Moylan. Second, the San Agustin Court held that Judge Tolentino was disqualified in that
matter as as the the recusal recusal judge judge because because he disqualified himself in the underlying case. Here, Judge
Tolentino has not disqualified himself himself in the underlying underlying matter matter and and he is not the recusal judge. judge.
Moreover, the Supreme Supreme Court Court of of Guam first first issued its Order in San Agustin on December
2023, which addressed the same issues 5, 2023, issues related to Judge Judge Tolentino's Tolentino's disqualification disqualification as the
recusal judge judge as as the the San San Agustin July 18, 2024 Opinion, albeit in less less detail. detail. The The OAG does not
distinguish distinguish why the July 18, 2024 Opinion in San Agustin triggered its mass objection, but the
December 5, 2023 2023 Order Order did did not. not.
Therefore, the Therefore, the Court Court declines declines to to find find that that the the issuance issuance of of the the Opinion in San Agustin
13 13 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04I9-24; CF0419-24;People PeopleofofGuam Guam v. v. Peter Peter Pangelinan Pangelinan Reyes Jr. Reyes Jr.
changed the circumstances allowing the circumstances allowing the OAG to timely timely file file numerous numerous statements statements of of objection objection
against Judge Tolentino based on previously known facts.
c. C. The OAG OAG Has Waived its Objection by Silence
As discussed As discussed previously, previously, parties parties can can waive waive aa judge's judge's 77 GCA GCA §§ 6105(a) disqualification by 6105(a) disqualification by
silent after remaining silent after learning of of potentially disqualifying facts. facts. Win, Wia, 2020 Guam Guam 17 ,r This 17 1128.
"silence-as-waiver" rule "silence-as-waiver" rule renders renders an an objection objection as as waived when based on information information previously
known to the parties parties through separate separate litigation. litigation. Id. Id. (finding that that PDSC waived by by silence
because they had raised the issue of of the judge's judge's disqualification disqualification iN in previous cases and, therefore,
were aware of the issue):
Further, in Win, Further, Wia, the Supreme Supreme Court of of Guam declined to answer whether "the most declined to most
egregious" egregious" conflicts conflicts are are waivable livable through throughsilence, silence,but butfound foundthat, that,ininthat thatcase, case,the thesi1ence-as- silence-as-
waiver rule rule applied applied because because counsel counsel had had been aware aware of the conflict and waited over a year to
object. Id. ,r at 1]30. Id at
Here, e, like like m in'· Win, Wia, the he OAG wa it ed over waited over aa yea r t to year file itits o file s fir st object first ion tto objection o Judge Judge
Tolentino. olentino. The T he OAG OAG was aware aware of of all all the the facts facts regarding regarding Judge TTolentino's olentino's and Moylan's Moylan's
relationship relationship by January 2023, yet waited Lentil May 1, until May 1, 2024 2024 to to file file its its first Hist objection objection to Judge
Tolentino in Ybanez. Ybanez. Further, the OAG continues to proceed in a number of Further, the of cases before Judge
without objecting. Tolentino without objecting. Thus, Thus, the Court finds that the silence-as-waiver silence-as-waiver rule applies and the
waived its OAG waived its ability to object to to Judge Tolentino based on his relationship with Moylan.
The Court need not answer whether whether Judge Tolentino Tolentino is is disqualified disqualified from hearing hearing matters
involving Moylan because even if if he he is, is, the the OAG OAG has has waived waived its its right right to to object. object. Therefore, Therefore, the
Court denies the OAG's OAG's Objection Objectionon onthe thebasis basis that that itit was was not not brought brought at at the the earliest earliest practicable practicable
opportunity. r
14 14 F DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0419-24; People People of ofGuam Guam v..Peter v._Peter Pangelinan Pangelinan Reyes Jr. Reyes Jr.
CONCLUSION
For the the aaforementioned for ementioned rreasons, sons, the the Cour Court her hereby DENIES the OAG's OAG's Objection. Objection.
Consequently, Judge Tolentino Tolentino may may continue continue to preside over over the above-captioned matter.
SO 29 2tsz4 AUG 2.9 ORDERED: - - - SO ORDERED: 2024 ------
HOD LE D GUTI EZ Judy ume)*ior Court of Guam
SERVICE VIA'E•MAIL VIVE-MAH.. II acknowledge thatan electronic acknowledge that electronic
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