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1 am SE? 26 1? ms: 2 CLER'i'{ OF COURT
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IN THE SUPERIOR COURT OFCUAM- 4
5 PEOPLE OF GUAM, 6 Plaintiff, Criminal Case No. CF0446-23 7 vs. 8 DECISION AND ORDER (Defendant's Motion for Reconsideration) ARTHUR U. SAN AGUSTIN et al, 9 DOB: 01/0I/1965 10 Defendants.
12 INTRODUCTION 13 This matter is before the Honorable Alberto E. Tolentino ("Judge Tolentino") for the 14 limited purpose of addressing Arthur U. San Agustin's ("Defendant") Motion for 15
16 Reconsideration. Defendant seeks to disqualify the Honorable Alberto C. Lamorena, III
17 ("Presiding Judge Lamorena") from presiding over the underlying case. Attorney Joaquin C.
18 Arriola, Jr. represents the Defendant. Pursuant to local rule CVR 7.l(e)(1), it has been decided
19 that oral argument is unnecessary, and the Court hereby DENIES Defendant's Motion for
20 Reconsideration. 21 BACKGROUND 22 The factual background of this matter was previously set out by the Court its a Decision 23 and Order issued on September ll, 2023. However, the facts necessary to dispose of the 24 instant Motion for Reconsideration are as follows: 25 On July 3, 2023, the Grand Jury indicted Defendant on the following charges: (1) 26
27 Tampering with Public Records (As a Second Degree Felony), (2) Obstructing Governmental
Page 1 of 8 1 Functions (As a Misdemeanor), and (3) Official Misconduct (As a Misdemeanor). Indictment, 2 July 3, 2023. The case was originally assigned to Judge Tolentino. Notice of Judge 3 4 Assignment, July 27, 2023. Judge Tolentino refused himselfsue sponge under 7 GCA § 6105.
5 Form One-Disqualification, July 31, 2023. The case was then assigned to Presiding Judge
6 Lamorena. Notice of Judge Assignment, Aug. 2, 2023. On August 22, 2023 Defendant filed a
7 Statement of Objection. On August 25, 2023, Presiding Judge Larnorena filed an Answer to
8 Statement of Objection. On August 30, 2023, the People filed a Memorandum of Points and
9 Authorities in Response to Statement of Objection 7 GCA § 6107. On September 11, 2023,
10 Judge Tolentino filed a Decision and Order Denying Defendant's Statement of Objection 11 seeking Disqualification of Presiding Judge Lamorena. Decision and Order, September 11, 12 2023. On September 18, 2023, Defendant filed a Motion to Reconsider the Decision and Order 13 Denying Disqualification of Presiding Judge Lamorena. Motion for Reconsideration, 14 September 18, 2023. 15
17 DISCUSSION
18 In the Motion for Reconsideration, the Defendant argues: 1) Judge Tolentino had
19 previously refused himself in this case and the grounds for recusal have not changed, 2) the
20 Government filed an opposition which is not allowed by Guam Law and to which director San
21 Augustin was not afforded the opportunity to reply, 3) there were new material facts disclosed 22 in Judge Lamorena's answer which Director San Agustin did not know before seeing the 23 Answer and did not have the opportunity to address, and 4) Judge Tolentino failed to consider 24 material facts and to apply the appropriate legal standard, which Defendant believes if cured 25 26 would have caused the Court to reach a different conclusion.
Page 2 of 8 1 I. Judge Tolentino had previously reused himself and the grounds for recusal have not changed. 2
3 Defendant alleges that the undersigned, who disqualified himself from the matter on 4 July 31, 2023, erred by entering a Decision and Order on the question of Presiding Judge 5 Lalnorena's disqualification. Motion for Reconsideration, September 18, 2023. Defendant 6 7 further alleges that Judge Tolentino, without citing authority and despite previously
disqualifying himself s u e s p o n g e , determined that the Court could address the matter "for the 8
9 limited purpose" of addressing the Statement of Objection. Id. at 5.
10 No Justice or Judge who shall deny his or her qualification shall hear or pass upon the
11 question of his or her own qualification, but in every case the question of the Justice's or
12 Judge's disqualification shall be heard and determined by some other judge. See 7 G.C.A. § 13 6107 (2023). Normally, if a judge disqualifies himself, or is disqualified, the ac t i o n o r 14 proceeding shall be heard and determined by another Judge of the Superior Court who is not 15 16 disqualified. (emphasis added). Id. However, a Statement of Objection is outside the usual
law and motion procedural rules. Van Dox v. Superior Court of Guam, 2008 Guam 7 1116, See 17
18 also Ureas v. Harris Farms Inc., 285 Cal.Rptr. 659, 662 (Ct .App.1991) (noting that, although
19 many parties file a "Motion for Disqualification," a statement of objection is not a motion).
20 Thus, a previously disqualified judge can make a determination of another judge's 21 disqualification because such a determination is outside the usual law and motion procedural 22 mies. Id. at 662. When addressing a Statement of Objection seeking disqualification, the 23 judge deciding the question may decide it based on the statement of disqualification and the 24 answer, or he may set the matter for hearing. Id. at 663. 25
Here, the "limited purpose" referred to in the Decision & Order was in response to the 26
27 Statement of Obi section seeking disqualification. Indeed, Defendant cites Van Dex when
Page 3 of 8 1 recognizing a motion for judicial disqualification is a "statement of obi econ, which is
2 governed by 7 G.C.A. § 6107, and not by the usual law and rules governing motion practice". 3 Motion for Reconsideration, September 18, 2023 . 4 Therefore, Judge Tolentino was permitted to address the Statement of Objection despite 5 having previously disqualified himself. The Court expressly raj eats this argument 6
8 11. Did the Government file an opposition which was not allowed by Guam Law and to which director San Augustin was not afforded the opportunity to reply? 9
10 Defendant argues that Opposition statements are not authorized as a Statement of
11 Objection is a statutory procedure. 7 G.C.A § 6107 (2023). As such, the People's 12 . .. . . . . Memorandum of Polnts and Authontles nm Response to Statement of Obi echelon is not 13 allowed by Guam Law, and the People should be admonished not to file papers not 14 authorized by statutory procedure. Motion for Reconsideration, September 18, 2023 . 15 16 However, the Court finds no prohibition in the statute against an opposing party filing a
17 response to a Statement of Objection, nor has Defendant offered any other authority to
18 support his contention that the adverse party is forbidden to advocate its position on the
19 issue.
20 Therefore, the Court rejects this argument. 21
22 III. Were there new material facts disclosed in Judge Lamorena's answer which Director San Agustin did not know before seeing the Answer and did not have the 23 opportunity to address? 24
Page 4 of 8 1 Under the Criminal Procedure Rules of the Local Rules of the Superior Court of
2 Guam, a party in a criminal matter may seek reconsideration of a previously determined 3 issue only based on: 4 (1) a material difference in fact or law from that presented to the 5 cour t befor e such decision tha t in the exer cise of r ea sona ble diligence could not ha ve been known to the pa r ty moving for 6 reconsideration at the time of such a decision, or, (2 ) t he emer gence of new ma t er ia l fa ct s or a cha nge of la w 7 occurring after the time of such decision, or, 8 (3 ) a ma nifes t s howing of fa ilur e t o cons ider ma t er ia l fa ct s presented to the Court before such decision."
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2- _ ,,...
.I 3-L D SuFlt. U'»...1\ plan \ CDU: \T _GC QUO?-,M
1 am SE? 26 1? ms: 2 CLER'i'{ OF COURT
3 L
IN THE SUPERIOR COURT OFCUAM- 4
5 PEOPLE OF GUAM, 6 Plaintiff, Criminal Case No. CF0446-23 7 vs. 8 DECISION AND ORDER (Defendant's Motion for Reconsideration) ARTHUR U. SAN AGUSTIN et al, 9 DOB: 01/0I/1965 10 Defendants.
12 INTRODUCTION 13 This matter is before the Honorable Alberto E. Tolentino ("Judge Tolentino") for the 14 limited purpose of addressing Arthur U. San Agustin's ("Defendant") Motion for 15
16 Reconsideration. Defendant seeks to disqualify the Honorable Alberto C. Lamorena, III
17 ("Presiding Judge Lamorena") from presiding over the underlying case. Attorney Joaquin C.
18 Arriola, Jr. represents the Defendant. Pursuant to local rule CVR 7.l(e)(1), it has been decided
19 that oral argument is unnecessary, and the Court hereby DENIES Defendant's Motion for
20 Reconsideration. 21 BACKGROUND 22 The factual background of this matter was previously set out by the Court its a Decision 23 and Order issued on September ll, 2023. However, the facts necessary to dispose of the 24 instant Motion for Reconsideration are as follows: 25 On July 3, 2023, the Grand Jury indicted Defendant on the following charges: (1) 26
27 Tampering with Public Records (As a Second Degree Felony), (2) Obstructing Governmental
Page 1 of 8 1 Functions (As a Misdemeanor), and (3) Official Misconduct (As a Misdemeanor). Indictment, 2 July 3, 2023. The case was originally assigned to Judge Tolentino. Notice of Judge 3 4 Assignment, July 27, 2023. Judge Tolentino refused himselfsue sponge under 7 GCA § 6105.
5 Form One-Disqualification, July 31, 2023. The case was then assigned to Presiding Judge
6 Lamorena. Notice of Judge Assignment, Aug. 2, 2023. On August 22, 2023 Defendant filed a
7 Statement of Objection. On August 25, 2023, Presiding Judge Larnorena filed an Answer to
8 Statement of Objection. On August 30, 2023, the People filed a Memorandum of Points and
9 Authorities in Response to Statement of Objection 7 GCA § 6107. On September 11, 2023,
10 Judge Tolentino filed a Decision and Order Denying Defendant's Statement of Objection 11 seeking Disqualification of Presiding Judge Lamorena. Decision and Order, September 11, 12 2023. On September 18, 2023, Defendant filed a Motion to Reconsider the Decision and Order 13 Denying Disqualification of Presiding Judge Lamorena. Motion for Reconsideration, 14 September 18, 2023. 15
17 DISCUSSION
18 In the Motion for Reconsideration, the Defendant argues: 1) Judge Tolentino had
19 previously refused himself in this case and the grounds for recusal have not changed, 2) the
20 Government filed an opposition which is not allowed by Guam Law and to which director San
21 Augustin was not afforded the opportunity to reply, 3) there were new material facts disclosed 22 in Judge Lamorena's answer which Director San Agustin did not know before seeing the 23 Answer and did not have the opportunity to address, and 4) Judge Tolentino failed to consider 24 material facts and to apply the appropriate legal standard, which Defendant believes if cured 25 26 would have caused the Court to reach a different conclusion.
Page 2 of 8 1 I. Judge Tolentino had previously reused himself and the grounds for recusal have not changed. 2
3 Defendant alleges that the undersigned, who disqualified himself from the matter on 4 July 31, 2023, erred by entering a Decision and Order on the question of Presiding Judge 5 Lalnorena's disqualification. Motion for Reconsideration, September 18, 2023. Defendant 6 7 further alleges that Judge Tolentino, without citing authority and despite previously
disqualifying himself s u e s p o n g e , determined that the Court could address the matter "for the 8
9 limited purpose" of addressing the Statement of Objection. Id. at 5.
10 No Justice or Judge who shall deny his or her qualification shall hear or pass upon the
11 question of his or her own qualification, but in every case the question of the Justice's or
12 Judge's disqualification shall be heard and determined by some other judge. See 7 G.C.A. § 13 6107 (2023). Normally, if a judge disqualifies himself, or is disqualified, the ac t i o n o r 14 proceeding shall be heard and determined by another Judge of the Superior Court who is not 15 16 disqualified. (emphasis added). Id. However, a Statement of Objection is outside the usual
law and motion procedural rules. Van Dox v. Superior Court of Guam, 2008 Guam 7 1116, See 17
18 also Ureas v. Harris Farms Inc., 285 Cal.Rptr. 659, 662 (Ct .App.1991) (noting that, although
19 many parties file a "Motion for Disqualification," a statement of objection is not a motion).
20 Thus, a previously disqualified judge can make a determination of another judge's 21 disqualification because such a determination is outside the usual law and motion procedural 22 mies. Id. at 662. When addressing a Statement of Objection seeking disqualification, the 23 judge deciding the question may decide it based on the statement of disqualification and the 24 answer, or he may set the matter for hearing. Id. at 663. 25
Here, the "limited purpose" referred to in the Decision & Order was in response to the 26
27 Statement of Obi section seeking disqualification. Indeed, Defendant cites Van Dex when
Page 3 of 8 1 recognizing a motion for judicial disqualification is a "statement of obi econ, which is
2 governed by 7 G.C.A. § 6107, and not by the usual law and rules governing motion practice". 3 Motion for Reconsideration, September 18, 2023 . 4 Therefore, Judge Tolentino was permitted to address the Statement of Objection despite 5 having previously disqualified himself. The Court expressly raj eats this argument 6
8 11. Did the Government file an opposition which was not allowed by Guam Law and to which director San Augustin was not afforded the opportunity to reply? 9
10 Defendant argues that Opposition statements are not authorized as a Statement of
11 Objection is a statutory procedure. 7 G.C.A § 6107 (2023). As such, the People's 12 . .. . . . . Memorandum of Polnts and Authontles nm Response to Statement of Obi echelon is not 13 allowed by Guam Law, and the People should be admonished not to file papers not 14 authorized by statutory procedure. Motion for Reconsideration, September 18, 2023 . 15 16 However, the Court finds no prohibition in the statute against an opposing party filing a
17 response to a Statement of Objection, nor has Defendant offered any other authority to
18 support his contention that the adverse party is forbidden to advocate its position on the
19 issue.
20 Therefore, the Court rejects this argument. 21
22 III. Were there new material facts disclosed in Judge Lamorena's answer which Director San Agustin did not know before seeing the Answer and did not have the 23 opportunity to address? 24
Page 4 of 8 1 Under the Criminal Procedure Rules of the Local Rules of the Superior Court of
2 Guam, a party in a criminal matter may seek reconsideration of a previously determined 3 issue only based on: 4 (1) a material difference in fact or law from that presented to the 5 cour t befor e such decision tha t in the exer cise of r ea sona ble diligence could not ha ve been known to the pa r ty moving for 6 reconsideration at the time of such a decision, or, (2 ) t he emer gence of new ma t er ia l fa ct s or a cha nge of la w 7 occurring after the time of such decision, or, 8 (3 ) a ma nifes t s howing of fa ilur e t o cons ider ma t er ia l fa ct s presented to the Court before such decision."
9 cR 1.1(d) (2007) 10 Thus, the Court is confronted with the preliminary issue of whether Defendant has demonstrated 11 one or more grounds for reconsideration. 12
13 A. Was there a material difference in fact or law from that presented to the court before such decision that in the exercise of reasonable diligence 14 could not have been known to the party moving for reconsideration at the time of such a decision? 15 Defendant argues that they were not aware of Presiding Judge Lamorena's Answer prior 16
17 to the Court filing the Decision and Order. Motion for Reconsideration, September 18, 2023.
18 Defendant argues that new material facts emerged based on the Answer, including 1) Presiding
19 Judge Lamorena was unaware that then-candidate Attorney General Douglas Moylan was
20 promoting their relationship on Facebook, and that 2) Presiding Judge Lamorena's official title 21 was used on the Facebook page, a page that Defendant argues was utilized as campaign 22 literature and remains so to this day. Id at 7. Defendant argues that such new material facts are 23 relevant because Defendant's Statement of Objection would have focused on the appearance of 24 impartiality, particularly when a judge should be disqualified despite not being the one actually 25
26 engaging in conduct creating the appearance of impropriety. Id
Page 5 of 8 1 The facts presented by Defendant in the Motion for Reconsideration are not new, as
2 Defendant was aware of Presiding Judge Lamorena's Answer, having been filed on August 25, 3 2023, and could have provided a response at any time prior to the Coult's filing of the Decision 4 and Order. Nor is Presiding Judge Lamorena's lack of awareness a relevant material fact, 5 rather, such lack of awareness and participation in the alleged conduct would make a reasonable 6 7 person less likely to see the conduct as having the appearance of impropriety. Therefore, to the
8 extent that Presiding Judge Larnorena's Answer is framed as an argument of new, material facts
9 unknown to the party moving for disqualification, the Court expressly rej acts this argument.
10 B. Was there the emergence of new material facts or a change of law occurring after the time of such decision? 11 Defendant has also failed to show any new or changed mandatory or persuasive 12
13 authority that was not considered by the Court. The authorities cited in the Motion for
14 Reconsideration include the same authorities cited in the Decision and Order. Therefore, to the
15 extent Defendant's argument is framed as an argument of new or changed law, the Court 16 expressly raj acts this argument. 17 C. Was there a manifest showing of failure to consider material facts presented to 18 the Court before such decision?
19 Citing Dizon in the Motion for Reconsideration, Defendant argues that the Decision and
20 Order focuses on actual bias and not the appearance of partiality related to the facts presented. 21 Motion for Reconsideration, Sept. 18, 2023. Defendant does concede that the Court referenced 22 the appearance of impartiality standard articulated in Di z o n , but argues that the Court 23 improperly focused on actual bias from Presiding Judge Lamorena to AG Moylan. Id at 10. 24 25 This is not so, as the Court's analysis of the facts was based on the appearance of impropriety
26 using the standard set down in Van Dox:
Page 6 of 8 1 The appearance of bias is judged from the standard of l) a reasonable person who 2) knows all the facts, and 3) understands 2 the context of the jurisdictions, parties, and controversies involved, including 4) such 'realities of the Guam judicial system" as the 3 relatively small number of lawyers in the Guam bar and "the nature 4 of Guam families"
5 Van Dox v. Superior Court of Guam, 2008 Guam 7 1132.
6 7 The Court applied the appropriate standard based on consideration of the same material facts
8 that were presented in the Decision and Order, and are once again being presented in the Motion
9 for Reconsideration, including 1) the professional reference showing Presiding Judge
10 Lamorena's name and current title, 2) the posting of the reference on AG Moylan's Facebook
11 page during the 2022 campaign for Attorney General, 3) the continued usage of the professional 12 . .. . . reference after the end of the campaign, and 4) Presldlng Judge Lamorena's ignorance regarding 13 AG Moylan's actions. The analysis shows that a reasonable person would, after looking at the 14 facts and understanding both the circumstances involved as well as the unique realities of the 15 Guam judicial system, as little more than an indication that Presiding Judge Lamorena, having 16
1) supervised AG Moylan as a law clerk thirty years prior and 2) having practiced in the same 17
18 legal community for several decades, can ultimately speak to AG Moylan's abilities as a legal
19 practitioner. A reasonable person would not find the inclusion of a professional reference under
20 such circumstance as giving the appearance of Presiding Judge Lamorena endorsing AG 21 Moylan's political platform. Therefore, the Court finds there were no material facts alleged that 22 the Court failed to consider. 23 The Court finds that Defendant has not demonstrated any of the three grounds for 24 reconsideration. Defendant seeks an oral hearing to develop the record, but does not offer any 25
specific new or previously unknown material fact which contradicts the findings in the Court's 26
27 earlier Decision and Order. Defendant had the opportunity to form a response to Presiding
Page7of 8 1 Judge Larnorena's Answer prior to the Court submitting a Decision and Order, however,
2 Defendant did not do so. Every new fact Defendant argued might exist would have existed at 3 the time Presiding Judge Lamorena's Answer was filed on August 25, 2023. Thus, the Court 4 finds that Defendant's Motion for Reconsideration must fail and the Motion is D E N I E D . 5
6 CONCLUSION
7 By preponderance of the evidence and based on the foregoing reasons, the Court hereby
8 DENIES the Defendant's Motion for Reconsideration. 9
10 -SEP 2 6,2023263 11 SO ORDERED, this day of
13 -_--__I_".1
14 --._
15 HONORABLE ALBERTO E. TOLENTINO 16 Judge, Superior Court of Guam 17
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