People v. Sablan

Opinion

\ I

§'fZ SUPEQQOQ COURt Gr GU #

1 2823 sup -8 PH 62 00 2 CLERK OF COURT

3 ,:~a'@ IN THE SUPERIOR C0UR155F-GUAM 4

5 PEOPLE OF GUAM, 6 Plaintiff, 'Criminal Case No. CF0447-23 7 l vs. I 8 DECISION AND ORDER I

(Disqualification ALEJO c. SABLAN et al, 9 Pursuant to 7 G.C.A. §6107) L.

Defendants . 10

12 INTRODUCTION 13 This matter is before the Honorable Alberto E. Tolentino ("Judge Tolentino"), for the 14 limited purpose of addressing Alejo C. Sablan's ("Defendant") Statement of Obj section filed 15

16 Aug. 22, 2023 pursuant to 7 G.C.A. § 6107. Defendant seeks to disqualify the Honorable

17 Alberto C. Lamorena, III ("Presiding Judge Lamorena") from presiding over the underlying

18 case. Attorney Joaquin C. Airiola, Jr. represents Defendant. Pursuant to local rule CVR

19 7.l(e)(l), it has been decided that oral argument is unnecessary, and the Court hereby DENIES

20 Defendant's request to disqualify the presiding judge. 21 BACKGROUND 22 On July 3, 2023, the Grand Jury indicted Defendant on the following charges: (1) Theft 23 By Complicity (As a Second Degree Felony), (2) Conspiracy For Misapplication Of Entrusted 24 Funds (As a Third Degree Felony), (3) Misapplication Of Entrusted Funds (As a 25 Misdemeanor), and (4) Official Misconduct (As a Misdemeanor) Indictment, July 3, 2023 . 26

27 The case was originally assigned to Judge Tolentino. Notice of Judge Assigrnnent, July 27,

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1 2023. The case was assigned to Presiding Judge Lamorena. Notice of Judge Assignment, July 2 28, 2023. On August 22, 2023 Defendant filed the Statement of Objection. On August 25, 3 4 2023, Presiding Judge Lamorena filed an Answer to Statement of Objection.

6 DISCUSSION

7 Title 7 G.C.A. § 6105 governs whether substantive grounds exist for disqualification

8 under 7 G.C.A. § 6107. Van Dex v. Superior Cr., 2008 Guam 7 1117. Ajudge shall be

9 disqualified from "any proceeding in which his or her impartiality might reasonably be

10 questioned..." 7 G.C.A. § 6105(a). Such impartiality can be demonstrated: 11 (1) Where he or she has a personal bias or prejudice concerning a party, or 12 personal knowledge of disputed evidentiary facts concerning the proceeding, 13

(2) Where in private practice he or she sewed as a lawyer in the matter in 14 controversy, or a lawyer with whom he or she previously practiced law 15 served during such association as a lawyer or either has been a material witness concerning the matter, 16 (3) Where he or she has served in governmental employment and in such 17 capacity participated as counsel, advisor, or material witness concerning the proceeding or, as such government employee, expressed an official opinion 18 concerning the merits of a particular matter in controversy, 19 (4) Where he or she knows that he or she, individual or as a fiduciary, or his or 20 her spouse or minor child residing in his or her household, has a financial interest in the subj et matter in controversy or is a party to the subj act matter 21 in controversy or is a party to the proceeding, or in any other interest that 22 could be substantially affected by the outcome of the proceeding,

23 (5) Where he or she or his or her spouse, or a person within the third degree of relationship to either of them, or the spouse of such person: 24

(A) is a arty to the proceeding, or an officer, director, or trustee of a party, 25 (B) is acting as a lawyer on the proceeding, 26 (C) is known by the Judge to have an interest that could be substantially affected by the outcome of this proceeding, 27

Page 2 of 11 1 (D)is to the Judge's knowledge likely to be a material witness in the proceeding. 2

3 7 G.c.A. § 6105(b). 1.

4 Defendant seeks Presiding Judge Lamorena's disqualification from this case on the 5 basis of an alleged bias towards the current Attorney General ("AG") of Guam, Douglas 6 Moylan. Defendant argues that then-candidate AG Moylan listed Presiding Judge Lamorena as 7 a "professional reference" on a resume posted to AG Moylan's public Facebook prollle, and 8 9 that this amounts to a tacit endorsement of AG Moylan's candidacy. Statement of Objection at

10 5. The "professional reference" is based on AG Moylan's service as Presiding Judge

11 Lamorena's law clerk thirty years prior. Statement of Objection at 4. Defendant further argues r

12 that Presiding Judge Lamorena's "endorsement of AG Moylan would likely be construed as the

13 lending of the prestige of Presiding Judge Lamorena's judicial office to advance the interests of

14 AG Moylan". Id Defendant avers that the endorsement of AG Moylan is particularly relevant 15 in this case, as it "relates to alleged "government comlption" and the political investigations of 16 public officials" Id The resume and the "professional reference" contained therein is still 17 posted on AG Moylan's public Facebook page, which is currently being used to provide 18 official announcements for the Office of the Attorney General. Id 19 Presiding Judge Lamorena denies that Defendant provided a reasonable basis for 20

disqualification. Presiding Judge Lamorena asserts that 1) he never publicly endorsed AG 21

22 Moylan or any other candidate in the 2022 election cycle, (2) he has never knowingly or

23 intentionally created a Facebook profile, and that (3) AG Moylan's resume and "professional

24 reference" contained therein was a unilateral act by AG Moylan which Lamorena "gave no

25 input or direction in". Id 26 II. 27

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1 Defendant does not allege that Presiding Judge Lamorena participated in the case as a 2 lawyer in private practice, that he is a material witness concerning the matter, nor that he or 3 4 some person within the third-degree relationship to him retziins an interest in the proceeding.

Instead, Defendant's objection rests exclusively on 7 G.C.A. § 6105(a), to wit, that Presiding 5 l

6 Judge Lamorena has a personal bias or prejudice concerning AG Moylan. Thus, the issue is

7 whether Judge Lamorena's impartiality might be reasonably questioned under Section 6105(a). 1

8 When evaluating such a contention, the Supreme Court of Guam has instructed that "what

9 matters is not 'actual bias," but the 'appearance of bias."' Van Dox v. Superior Court of Guam,

10 2008 Guam 7 'H 32 (quoting Dizon v. Superior Court of Gucim, 1998 Guam 3 1] 10, n.3). The 11 appearance of bias is judged from the standard of a reasonable person given all the relevant 12 facts in the controversy. Id; see also Ada v. Gutierrez, 2000 Guam 22 1112. 13 A. 14

15 Title 7 GCA § 6105 is based on 28 U.S.C. § 455 and governs the substantive 16 I grounds for disqualification of judges. Section 6105 provides: 17 § 6105. Grounds of Disqualification. 18 (a) Any judge shall disqualify himself or herself in any proceeding in 19 which his or her impartiality might reasonably be questioned, but if, 20 following complete disclosure to all parties in the proceedings of the reasons for disqualification, all parties agreed to having the judge 21 continue to sit in the proceedings, he or she need not disqualify himself or herself. e 22 7 GCA § 6105(a) (2013) (emphasis added); See Ada v. Gutierrez, 2000 Guam 22 1] 12, 23 r

24 n.2. Section 6105(a) requires disqualification for the appearance of partiality, such as

25 when judge's "impartiality might reasonably be questioned." 7 GCA § 6105(a). In other u n . . \ . . 26 wor ds, "dlsqua llica t lon ma y occur even t hough a Judge is not a ct ua lly bla sed or

27 prejudiced, and has no extrajudicial knowledge of disputed evidentiary facts." US v. Page 4 of 11 i

1 Salem re, 164 F.Supp.2d 49, 80 (D. Mass. 1998) (citation omitted). Actual bias is not a

2 prerequisite for recusal, as the appearance of impropriety is enough.See Lifeky v. United 3 States, 510 U.S. 540, 548 (1994). "The standard for recusal is the appearance of 4 impropriety and [ ] no actual showing of bias is necessary for recusal to lie." Dizon v. 5 Superior Ct., 1998 Guam 3 11 32. The purpose of Sectio 455(a) "to promote public 6 P 7 confidence in the integrity of the judicial process" and to al/oid even the "appearance of . . \ impropriety." Liyeberg v. Heal th Serve. Acquisition Corps, 486 U.S. 847, 860 (1988). 8

9 "Avoiding the appearance of impropriety is as important to developing public confidence I

10 in the judiciary as avoiding impropriety itself." US v. Hollister, 746 F.2d. 420, 425-26 (8th I

11 Cir. 1984), See also 28 U.S.C. § 455(a). "[J]udges and justices have 'as strong a duty to 12 sit when there is no legitimate reason to recuse as [they] doE ] to recuse when the law and 13 facts require."'People v. Tennessee, 2010 Guam 121]49 (quiting Nichole v. Alley, 71 F.3d I

14 I 347,351 (10th Cir. 1995)). I 15 B. 16

Courts often apply a reasonable person standard to determine whether impartiality 17

18 or the appearance of impropriety must be reasonably questioned. This standard evaluates I I

19 whether a reasonable person with knowledge of all the facts would conclude that judge's

20 impartiality might reasonably be questioned. See United States v. Studley, 783 F.2d 934, 21 939 (9th Cir. 1986). The Supreme Court of Guam has adopt d this objective standard and 22 has held that "[t]he appearance of bias is judged from the standard of a 'reasonable person' 23 who knows all the facts, and understands the 'contexts of he jurisdictions, parties, and 24 controversies involved,' including such 'realities of the ram judicial system' as the 25

relatively small number of lawyers in the Guam bar and 'tire nature of Guam families."' 26

27 Van Dox, 2008 Guam 7 11 32 (quoting Ada, 2000 Guam 22 111] 12-13). Section 455(a)

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l recusal cases are "extremely fact intensive and fact bound, and must be judged on its

2 unique facts and circumstances more than by comparison to situations considered in prior 3 . . . jurisprudence." United States v. Jordan, 49 F.3d 152, 157 (5th C1r. 1995). 4 111. 5 Generally, when a former law clerk appears before a judge for whom they once 6 7 clerked, it is insufficient grounds to make a reasonable person question a judge's

impartiality. See In re Cooke, 160 B.R. 701, 707 (D.Conn. 1993) (citation omitted). To 8

9 cure the appearance of impropriety, some federal courts have adopted either rules or

10 decided cases prohibiting former law clerks or judges from appearing before a judge for

11 a period after their clerkship. A judge's recusal is also not required where there is 12 insufficient evidence that an attorney worked on case during their clerkship. See e.g., 13 Reilly by Reilly v. S.E. Pa. Transl. Auth., 479 A.2d 973 (Pa. Super. Ct.1984) (finding a 14 judge's recusal unnecessary where the record did not suggest the attorney was involved in 15 16 the case during his clerkship).

The United States Supreme Court, the First Circuit, and the Eighth Circuit have 17

18 adopted recusal rules which prohibit former law clerks from practicing before their judge

19 for a period after their clerkship. See e.g., Ghee v. Artuz, 285 F.Supp.2d 328, 329

20 (E.D.N.Y. 2003) (citing U.S. Sup. Ct. R. 7) (The U.S.S.C. prohibits a former law clerk 21 from appearing for two years from their date of separation.), In re Martinez-Catala, 129 22 F.3d 213,218 (1st Cir. 1997) (citing 1st Cir. R. 46) ("Courts often have prophylactic rules 23 that forbid a former law clerk from appearing in that court for a year or more after the 24 clerkship, but no such rule is claimed to have been violated in this case."). The Eighth 25

Circuit prohibits law clerks from appearing for a period of one year after their clerkship. 26

27 See Patzner v. Burnett, 779 F.2d 1363, 1372 (8th Cir. 1985). Initially, in Hollister, the

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1 Eighth Circuit Court of Appeals reviewed a judge's refusal to recuse himself where the

2 prosecutor completed her clerkship three months earlier.See Hollister, 746 F.2d. at 425. 3 The Hollister Court said that it refused to adopt a bright-line recusal or disqualification 4 rule for judges, recommending a one-year insulation period before a judge could hear a 5 case involving a former law clerk, and ultimately left recusal to the judge's discretion. Id 6 7 In Patzner, the Eighth Circuit Court of Appeals later explained that it had promulgated a

8 one-year rule for the recusal of former law clerks:

9 In light of Hollister, the Eighth Circuit Court of Appeals has promulgated a rule providing that a circuit court law clerk may not 'after leaving 10 employment participate in any way as an attorney in any case pending in this Court during his or her term of service, or appear at counsel table or 11 on brief inany case heard during a period of one year following separation from service with the Court.' 12

13 Patzner, 779 F.2d at 1372 n.8. (quoting 8th Cir. R. 30). The Patzner Court noted the

14 adoption of a recusal rule for law clerks but held, "We leave [the] question of a judge's

15 [disqualification] to be resolved by the trial judge ...." Id at 1372.

16 There are also federal district courts with case law establishing similar recusal 17 rules applicable to judges and law clerks. See e.g. Smith v. Pepsico, 434 F.Supp. 524, 526 18 (S.D.FIa. 1977) (recognizing that where judges and their former law clerks were 19 concerned, the custom was a one-year recusal period in the district), Duke v. Pfzer, Inc., 20 668 F .Supp. 1031, 1036 (E.D.Mich. 1987) (citations omitted) ("[A] one- or two-year 21

22 period of repose is enough to cure any possible appearance of impropriety."), Ghee v.

23 Artus, 285 F.Supp.2d 328, 329 (E.D.N.Y. 2003) (adopting a rule disqualifying former law

24 clerks from appearing before the court for one year).

25 The Defendant contends Presiding Judge Lamorena's impartiality might 26 . . . . reasonably be questloned based on his former law clerk's appearance in this matter and 27

Page 7 of 11 1 provides the following arguments: (1) that he and AG Moylan enjoyed a close professional

2 relationship for approximately six months during his clerkship, and Presiding Judge 3 Lamorena relied on AG Moylan to conduct research relating to his assigned docket and 4 provide guidance on legal, procedural, and other issues, (2) that despite thirty years 5 between AG Moylan's departure as Presiding Judge Lamorena's law clerk and his election 6 7 to Attorney General, a reasonable person might question his impartiality, as it creates the

8 appearance of impropriety requiring recusal. Objection at 3..T he Defendant further

9 contends that Presiding Judge Lamorena gave his tacit endorsement of then-candidate AG

10 Moylan's campaign due to the former's name being listed as a "professional reference"

11 on AG Moylan's personal Facebook profile. Id 12 Presiding Judge Lamorena admits AG Moylan was his law clerk from 2001 to 13 early 2002. Answer at 2. Presiding Judge Lamorena contends that the professional 14 reference posted on Facebook indicates (1) that Doug Moylan served as his law clerk 30 15 16 years ago, and (2) that as someone who employed him, he is knowledgeable of Moylan's

ability as a lawyer. Answer at 2. Presiding Judge Lamorena further argues that the 17

18 existence of the resume doesn't suggest his advocation or endorsement of any specific

19 skill/ability AG Moylan possesses, or of his 2022 campaign in general. Id

20 Absent other indications of bias or prejudice, this Court will not assume that a 21 reasonable person knowing all of the circumstances would question Presiding Judge 22 Lamorena' s impartiality based on AG Moylan's prior service as Presiding Judge 23 Lamorena's law clerk thirty years prior. 24

26 Iv.

Page 8 of 11 1 Next, the court looks at the Defendant's allegation that Presiding Judge Lamorena

2 endorsed AG Moylan's candidacy in the 2022 general election. 3 There are circumstances when a judge has a personal relationship with an attorney 4 that would make it difficult for a judge to be impartial, or to be perceived as impartial by 5 an objective observer. See United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. 1985). 6 Courts have frequently noted that a "judge's friendship with counsel appearing before him 7

8 or her does not alone mandate disqualification." In re Cooke, 160 B.R. 701, 708 (Banks.

9 D. Conn. 1993) (citing Henderson v. Dap 'r of Public Safety and Corrections, 901 F.2d

10 1288, 1295-96 (5th Cir. 1990)). "A prior co-counsel relationship accompanied by an

11 additional association, such as a close personal or social involvement, or an ongoing 12 financial relationship, may cause a reasonable person to question a judge's impartiality." 13 Bonelli v. Bonelli, 570 A.2d 189, 192 15 (Conn. 1990) (citing Potashnick v. Port City 14 Construction Co., 609 F.2d 1101, 1114-15 (5th Cir. 1980) (holding that judge with an 15 extensive business and professional relationship with counsel should have disqualified 16

17 himself). r

18 T he Seventh Cir cuit ha s a cknowledged tha t in contempor a r y lega l cultur e,

19 relationships between a judge and attorney are common. See Murphy, 768 F.2d at 1537.

20 That court observed that "a judge need not disqualify himselfjust because a friend-even a 21 close friend-appears as a lawyer." Id The court, however, noted "that when the association 22 exceeds 'what might reasonably be expected' in light of the associational activities of an 23 ordinary judge, the unusual aspects of a social relation may give rise to a reasonable 24 question about the judge's impartiality." Id at 1538 (internal citation omitted). A judge's 25

acquaintance with an attorney does not typically require disqualification, but there are 26

27 cases where the degree of intimacy warrants disqualification. Id at 1538 (finding that an

Page 9 of 11 1 objective observer might reasonably question a judge's neutrality, where the judge and

2 prosecutor were close friends and had undisclosed plans to go on a joint family vacation 3 after tn'al). There are those cases that are inapposite. See e.g., Jordan v. Henderson v. 4 Dept. of Public Safely, 901 F.2d 1288, 1296 (5th Cir. 1990) (finding recusal inappropriate 5 where one party alleged the judge and opposing counsel were good friends and had known 6 opposing counsel since he was a kid). 7

Presiding Judge Lamorena admits and contends the following: (1) that he never 8

9 publicly endorsed AG Moylan or any other candidate in the 2022 election cycle, (2) that

10 AG Moylan's resume and "professional reference" contained therein was a unilateral act

11 by AG Moylan which Presiding Judge Lamorena "gave no input or direction in", (3) that 12 he has never knowingly or intentionally created a Facebook profile, (4) that the existence 13 of a professional reference only indicates that AG Moylan once sewed as Presiding Judge 14 Lamorena's law clerk, and that Presiding Judge Lamorena is knowledgeable of AG 15 16 Moylan's abilities as a lawyer based on that prior employment. Answer at 2.

17 The present case is distinguishable from the cases cited above, as there are no

18 unusual aspects of this relationship that may give rise to a reasonable question about the

19 judge's impartiality. Unlike inMurphy, there were no plans to spend time together outside

20 the context of their professional relationship as legal colleagues practicing in the same 21 community. In the present case, Presiding Judge Lamorena neither had personal 22 engagements with AG Moylan, nor did he attend political campaign functions on behalf 23 of then-candidate AG Moylan. Like in In Re Cooke, the relationship between Presiding 24 25 Judge Lamorena and AG Moylan will likely not cause a reasonable person to question the

26 judge's impartiality even if that relationship was personal rather than professional in

27 nature. Unlike inBonelli, there is no business or financial relationship between Presiding Page 10 of 11 |.

1 Judge Lamorena and AG Moylan. Finally, unlike in Murphy, the social relation

2 established between Presiding Judge Lamorena and AG Moylan does not imply extensive 3 personal contacts such that there would be a special willingness to rely on AG Moylan's 4 representations as a prosecutor, nor a reluctance to hand a defeat to the Attorney General 5 in a highly visible con'uption case. 6 Indeed, it appears Presiding Judge Lamorena was not even aware of the fact that 7

8 AG Moylan was still using him as a professional reference thirty years after the latter's

9 service as law clerk ended. This fact alone makes this case distinguishable from the cited

10 cases, as the record is devoid of any ongoing personal or social relationship between Judge

11 Larnorena and AG Moylan, nor does the record contain evidence that Judge Lamorena 12 . . .. publlcly supports AG Moylan's "tough on crime" polltlcal platform. Absent any facts to 13 the contrary, a reasonable person would not find that Presiding Judge Lamorena's 14 impartiality should "reasonably be questioned" to warrant disqualification. 15

16 CONCLUSION 17 For the above reasons, the Court DENIES Defendant's request to disqualify the 18 .. Presldmg Judge. 19

21 so ORDERED, this day of SEP 08 2023 2023.

22 | < 23 7

25 HONORABLE ALBERTO E. TOLENTINO 26 Judge, Superior Court of Guam

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