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CLFRH CLER!( UF
Of CGURT
COURT
IN THE
THE SUPERIOR
SUPERIOR COURT
COURT OF GU1~-~- ~
oF GU,Q/L_-. ' nM
PEOPLE OF GUAM, PEOPLE Criminal Case Criminal Case No. CF0446-23
Plaintiff,
vs. DECISION AND ORDER DENYING DEFENDANT'S RENEWED STATEMENT
ARTHUR U. ARTHUR U. SAN SAN AGUSTIN, et al.,
AGUSTIN, et OF OBJECTION DOB: 01/01/1965 77 G.C.A.
G.C.A. §§6107
Defendant.
INTRODUCTION
This matter -This matter came came before
before the
the Honorable Dana A. Gutierrez on October October 11,
11, 2023, for the
limited purpose of limited purpose of reviewing reviewing aa Renewed
Renewed Statement
Statement of
of Objection
Objection 77 G.C.A.
G.C.A. §§ 6107
6107 ("Renewed
("Renewed
Objection") filed Objection") filed by Arthur U. San San Agustin
Agustin ("Defendant")
("Defendant") on
on October
October 2,
2, 2023.
2023. Defendant
Defendant
objects to the Honorable Presiding Judge Alberto C. Lamorena Ill IH ("Presiding Judge Lamorena")
presiding over this case due to to Presiding
Presiding Judge of Guam, Judge Lamorena's relationship with Governor of
Lourdes Leon Guer des A. Leon Guerrero r ("Governor Leon
("Gover Leon Guer
Guerrero")
r o") aand her
her fafamily.
mily. PPresiding Judge
r esiding Judge
Lamorena denies that his connection to the Leon Lamorena Leon Guerrero Guerrero family compels
compels his
his disqualification
disqualification in
case. Upon consideration of the parties' positions and the this case. the applicable applicable law, the Court hereby
DENIES Defendant's Renewed Objection.
BACKGROUND
The People People of
of Guam
Guam indicted
indicted Defendant
Defendant on
on fifteen
fifteen counts
counts of
of Tampering
Tampering with
with Public
Public
Records (as Records (as a Third Degree Felony), one count ofObstructing count of Obstructing Governmental Governmental Functions
Functions (as a
DECISION AND ORDER DENYING DEFENDANT'S RENEWED STATEMENT OF OBJECTION 77 G.C.A. G.C.A. §§ 6107 6107
of Guam v.
CF0446-23; People of Arthur U. San Agustin, et al.
v. Arthur al.
Misdemeanor), a nd one count demea nor ), and of Officia count of is conduct (a(as Officiall MMisconduct is demea nor ). S Superseding s a aMMisdemeanor). uper s eding
Indictment at 1-10 (Aug. 21, 2023). charges against 2023). All seventeen charges Special against Defendant include aa Special
Allegation of Crime Allegation of Crime Against Against the Community
Community under
under 99 G.C.A.
G.C.A. §§43.31(a)(1),
43.3l(a)(l); each
each alleges
alleges that
that
Defendant "as Director Defendant Guam Public Director of Guam Health and Public Health Social Services, andSocial knowingly take Services, did knowingly take
regarding government services ...
action regarding creat[ing] aa threat ...create[ing] the public threat to the health and public health safety[.]"
and safety[.]"
(emphasis in
See id. (emphasis originals).
in originals).
On August 2, On August 2023, the case 2, 2023, was assigned case was to Presiding assigned to Judge Lamorena.
Presiding Judge Notice of SeeNotice
Lamorena. See of
Judge Assignment Judge (Aug. 2, Assignment (Aug. August 22, 2023). On August 2, 2023). 2023, Defenda 22, 2023, filed aa SStatement Defendant filed tat of of
Objection Objection [7 [7 G.C.A.
G.C.A. §§ 6107] ("First Objection"), 6107] ("First Objection"), which which argued for Presiding Presiding Judge
Judge Lamorena's
disqualification because disqualification the Presiding because the Judge "is Presiding Judge of [Attorney "is biased in favor of General] Moylan [Attorney General]
and thus and the People of thus the Guam,"and ofGuam," becausethe
andbecause PresidingJudge thePresiding "supports and Judge"supports endorses and endorses
[Attorney] General [Attorney] actions." First Objection General Moylan's actions." 22, 2023).
(Aug. 22,
Objection at 6 (Aug. Presiding Judge 2023). Presiding
Lamorena filed an Answer to the Answer to First Objection, denying Defendant's the First allegations. See Answer Defendant's allegations.
to Statement of of disqualification was then referred to the of Objection (Aug. 25, 2023). The issue of
Alberto E.E.Tolentino
Honorable A1be1"to ("JudgeTolentino").
Tolentino("Judge On September Tolentino"). On 11, 2023, September 11, Judge Tolentino 2023, Judge
issued a Decision issued and Order Decision and denying Defendant's Order denying request to Defendant's request disqualify Presiding to disqualify Judge Presiding Judge
Lamorena. See Dec. & Order (Sept. 11, 2023). of 2023). Defendant filed a Motion for Reconsideration of
Tolentino also
this decision, which Judge Tolentino denied. See also denied. Dec. &
See Dec. Order (Sept.
& Order 26, 2023).
(Sept. 26,
On October 2, 2023, Defendant filed his Renewed Objection, now arguing Objection, now that Presiding arguing that
Judge Lamorena must Judge Lamorena be disqualified must be case due this case
disqualified from this to his due to personal relationship his personal the relationship with the
Guerrero family. Defendant Leon Guerrero of Guam v. Richard Defendant cites another recent criminal case, People of
K Ybanez, et al.; Criminal Case No. CF0447-23 Y Ybanez, (hereafter, "Ybanez CF0447-23 (hereafter, Presiding "Ybanez case"), where Presiding
Judge disqualified himself based Judge Lamorena disqualified relationship with based on his relationship the Leon with the Guerrero family.
Leon Guerrero
3
.m
DECISION AND ORDER DENYING DEFENDANT'S RENEWED RENEWED STATEMENT OF OBJECTION 77 G.C.A. G.C.A. §§6107 CF0446-23; People People of
ofGuam
Guam v. ArthurUU.San
v. Arthur SanAgustin,
Agustin,Hz'
et al.
Objection at 1-2
Renewed Objection (Oct. 2, 1-2 (Oct. 2023). In
2, 2023). disqualifying In disqua the Ybanez case, lifying himself from the
Presiding Judge Lamorena explained:
1. Thiscase 1. This involves close caseinvolves analysis of close analysis of the inner-workings of the inner-workings of the Government of of Guam and Governor Leon-Guerrero's [sic]
Governor Lou Leon-Guerrero's [sic] administration.
have
2.. II ha close
ve a ac los relationship e r ela t ions hip wit with theL eonh t he G u er er [ s[sic]
Leon-Guerrero a mily. TThis ic f family. his
tionship may
relationship ma y provoke specula tion and pr ovoke speculation a nd doubt reasonable doubt in aa r ea sona person per son
regarding regarding the partiality as undersigned's partiality
the undersigned's as the assigned judge the assigned current the current
judge in the
That, in tum,
matter. That, raises reasonable turn, raises questions in the minds of reasonable questions litigants and of litigants
fairness of
the public about the fairness of the proceedings and the overall integrity of the the proceedings
process. Based on
3. Based onthe facts and thefacts reasons set andreasons setforth above, the forthabove, relationship that therelationship exists that exists
between between the Leon-Guer
Leon-Guerrero [sic] family r er o [sic] family and the undersigned the under signed prpresents esents an
appear ance of appearance bias and of bias impropriety that and impropriety that warrants disqualification in warrants disqualification the in the
current matter.
Renewed Ex.Bat Objection, Ex.
Renewed Objection, 1-2 (Sept. 26, 2023).
B at 1-2
this case
Defendant asserts that this "iNvolve even closer analysis of the inner-workings case will "irivolve
Government of
of the Government Guam and of Guam Governor Leon and Governor Guerrero's administration"
Leon Guerrero's than the Ybanez administration" than
se. Renewed case. Objection att 3.
Renewed Objection nt notes 3. Defendant was aappointed notes thatt he wa by Gover ppointed by Leon Governor Leon
of Public Health and Social Services ("DPHSS"), Guerrero to be the Director of the Department of
which is "a line agency in the Executive Branch the Executive of the Branch of Government of the Government Guam ...
of Guam the direct under the
... under
supervision" of Governor Leon Guerrero. Id.
of Governor at 2.
Id at He claims
2. He that issues related to claims that the Governor's to the Governor's
actions, budgeting, and actions, budgeting, issue in the case.
and communications with DPHSS will be put at issue case. Id. 2-3.
at 2-3. Id at
also claims He also that to resolve other pending motions claims that will need motions in this case, he will to call need to "the
call "the
custodian of record for the of the office of
the office Governor of the Governor Guam" as a witness. Id. at of Guam" at 2.
On October 2023, Presiding October 6, 2023, Judge Lamorena esiding Judge issued an mor ena issued Answer to a n Answer Renewed to the Renewed
t ement of OObjection
Statement "Ans wer ") . Presiding b jec ion (("Answer"). u dge LLamorena es iding Judge knowledged that ena aacknowledged he ha t he
disqualified himself in the Ybanez disqualified case, and Ybanez case, stated he did and stated so after did so learning the case after learning would case would
4
DECISION AND ORDER DENYING DEFENDANT'S RENEWED STATEMENT OF OBJECTION DEFENDANT'S RENEWED
77 G.C.A. G.C.A. §§6107 CF0446-23; People of Guam v.v. Arthur of Guam San Agustin, et al.
Arthur U San
involve a ssubpoena involve ing "all u b oena ccovering a t ions between ll ccommunications
ommu t he Office b et ween the he GGovernor ic e of tthe over nor
or attorneys
employees or Guam Regional attorneys with Guam Transit Authority."
Regional Transit (Oct. 6, Authority." Answer at 22 (Oct. 2023).
6, 2023).
Presiding Judge Presiding that in the Ybanez explained that
Judge Lamorena explained case, his relationship Ybanez case, with the relationship with the Leon
Guerrero family "might present the appearance Guerrero bias when appearance of bias ruling on whether communications when ruling
directly from the Office directly from subpoenaed." Id.
Office of the Governor could be subpoenaed." Presiding Judge Id Presiding Lamorena Judge Larnorena
this case
asserts this concern. He reasons:
case does not pose a similar concern.
The facts issues in facts and issues this case in this are sufficiently case are different from sufficiently different [the those in [the
from those
case] to remove any
Ybanez case] suggestion or any suggestion appearance of or appearance of bias on mymy part. This part. This
sanitary permits were properly case revolves around whether sanitary schools.
properly issued to schools.
decision to
The decision to issue or not issue or issue sasanitary not issue permits nita r y per lies exclusively mits lies between exclusively between
[DPHSS] and the Guam Department of Education.
of Education. This is not a decision that the Governor's Office has any input in. Unlike [the [the Ybanez case], subpoenaing and analyzing communications from Governor's from the Governor's Office Office will not be will not central issue be aa central
in this case. Therefore, my relationship case. Therefore, with Governor Leon Guerrero's family relationship with
not suggest
does not suggest or present the appearance of bias should I continue to rule on this of
matter.
After Presiding Id. After Judge Lamorena Presiding Judge issued his Lamorena issued Answer, this his Answer, disqualification challenge this disqualification was challenge was
referred to the undersigned.
DISCUSSION
1. Legal Standard
Title Title 77 G.c.Ai
G.c.A: §§ 6105
6105 provides
provides the
thesubstantive
substantive grounds
grounds for
for judicial
judicial disqualification disqualification in
in
1
Guam.1 Under 77 G.C.A. Guam. Under G.C.A. §§ 6105(a), 6I05(a), a judge shall disqualify disqualify himself from
from "any
"any proceeding
proceeding in
in
which his or her impartiality might reasonably impartiality might be questioned[.]"
reasonably be To determine questioned[.]" To whether a judge's determine whether judge's
impartiality might be impartiality might questioned, ''what be questioned, matters isis not "what matters bias,' but the 'appearance 'actual bias,'
not 'actual of 'appearance of
11 The The Renewed Renewed Objection
Objection does
does not
not state
state which
which subsection
subsection of
of 7 G.C.A.
G.C.A. §§ 6105
6105 isis atat issue
issue here.
here. Since
Since
Presiding Judge Lamorena disqualified Judge Lamorena himself in disqualified himself Ybanez case because in the Ybanez of "an because of appearance of "an appearance of bias and impropriety," impropriety," the the Court
Court assumes the Renewed assumes the RenewedObjection Objectionisis brought
brought pursuant
pursuanttoto77 G.C.A.
G.C.A. §§ 6105(a).
6l05(a).
Renewed Objection, Ex.Bat Ex. 2.
5
)
DECISION AND ORDER DENYING DEFENDANT'S STATEMENT OF OBJECTION RENEWED STATEMENT
DEFENDANT'S RENEWED
7 7 G.C.A. G.C.A. §§ 6107 6107
CF0446-23; ofGz1am CF0446-23; People of Arthur U Guam v.v.Arthur Agustin, et al.
San Agustin, U San
bias."' Van bias."' Van Dox v.
v. Superior if 32 Ct., 2008 Guam 7 1]
Superior Cr., 32 (quoting Guam 33 1998 Guam
Ct., 1998
v. Superior Cr.,
Dizon v.
(quoting Dizorz
,r 10 n.3). 110n3)
courts apply
"Guam courts an objective, apply an reasonable person objective, reasonable standard in determining person standard whether determining whether
there is an appearance v. Tennessen, appearance of bias meriting disqualification." People v. Guam 12 Tennessee, 2010 Guam ,r 12 1]
49.. The "r ona b le person"
"reasonable in this p er s on" in lys is is his analysis omeone "who knows is someone ll tthe knows aall ct aand he fafacts, nd
understands the understands 'contexts of the 'contexts the jurisdictions, of the parties, and controversies jurisdictions, parties, including controversies involved,' including
'realities of the Guam judicial system' as such 'realities the relatively as the of lawyers relatively small number of the lawyers in the
'the nature
Guam bar and 'the ofGuam nature of families."'Van Guam families."' Guam7 711,r 32 2008Guam
Dox,2008
VanDex, (quoting Ada 32 (quoting v.
Ada v.
Gutierrez, ,r,r 12-13). Gutierrez, 2000 Guam 22 W 12-13). Accordingly, "the reasonable person is not 'hypersensitive
or unduly suspicious,' 'well-informed, thoughtful suspicious,' but is a 'well-informed, observer."' United thoughtful observer."' Sierra United States v. Sierra
Pacyic Pacific Industries, Industries, 759
759 F. Supp.
Supp. ad
2d 1198,
1198, 1203 Cal. 2010)
(E.D. Cal.
1203 (E.D. (quoting United States 2010) (quoting v.
States v.
Holland, 909,913 Holland, 519 F.3d 909, 2008)). 2 Cir. 2008)).2
913 (9th Cir.
"If there is a question as to the propriety of "If remaining on of a judge remaining case, itit isis better on aa case, err better to err
side of
on the side caution and in favor of caution of recusal." Dizon, 1998 favor of ,r 9.9. But 1998 Guam 33 1] But with that said, "a
party's unilateral perceptions party's unilateral of an perceptions of appearance of bias cannot be a ground for an appearance disqualification."
for disqualification."
Sula v. Guam Board of Sule v. of DenfaI Dental Examiners, ,r 20 Guam 20 1]
Examiners, 2008 Guam 20 (quoting (quoting Andrews v.v. Agricultural Agricultural
Labor Relations 623 P.2d Relations Board, 623 151, 158 P.2d 151, (Cal. 1981)).
158 (Cal. "judges should 1981)). TThus, "judges not rrecuse should not ecuse
themselves solely because aa party solely because of partiality." Tennessee, party claims an appearance of 12 Tennessen, 2010 Guam 12
,r 49 1] 49 (quoting In In re strong a "as strong
have "as
judges have
Guam judges
2001)). Guam
Cir. 2001)).
(2d Cir.
201 (ad
194, 201
241 F.3d 194,
re Aguinda, 241
duty to sit when there is no legitimate reason to recuse as [they] do[] to recuse when the law and do[ ] to
22 Because Because 77 G.C.A.
G.C.A. §§ 6105
6105 is
is taken
taken from
from the
the federal
federal disqualification
disqualification statute, statute, 28
28 U.S.C.A.
U.S.C.A. §§ 455,
455, federal
federal
courts' interpretation interpretation of the federal federal disqualification
disqualification statute
statute is instructive
instructive for the purpose purpose of
of interpreting
interpreting
disqualification statute. People v.
our own disqualification Tennessen, 2010 Guam v. Tennessee, Guam 12 ,r 25 (citing Ada v. Gutierrez, 12 1125 Gutierrez, 2000 Guam 22 22 1[ 12 n.2).
,i 12 n.2).
6
\
DECISION AND ORDER DENYING DEFENDANT'S DEFENDANT'S RENEWED STATEMENT OF OBJECTION RENEWED STATEMENT
77 G.C.A. G.C.A. §§ 6107 6107
CF0446-23; People of ofGz1am Arthur UU San Agustin, Guam v.v.Arthur al.
Agustin, et al.
facts require." Id facts require." Nichols v.
(quoting Nichole Id (quoting F.3d 347, v. Alley, 71 F.3d 351 (10th 347, 351 Cir. 1995)
(10th Cir. (alterations in 1995) (alterations
original)). or"iginal)).
2. z. Disqualification is Not Warranted
A. Self-Assessment Receives Deference Lamorena'sSelf-Assessment Presiding Judge Lamorena's Presiding
In Gua the aappellate
Guam, the ppella sta of rreview standardd of for judicia eview for disqualification judiciall disqua is abuse lifica tion is of
buse of
See Van
discretion. See Dox, 2008 Guam Van Dex, ,r 15.
Guam 77 11 It is
15. It that aa judge implicit that
therefore implicit is therefore judge has some
discretion to determine discretion to her recusal determine whether his or her necessary. Many courts recusal is necessary. this courts have echoed this
See, e.g.,
conclusion. See, Disqualification of e.g., In re Disqualyication lnderlied, 48 N.E.3d of Inderlied, 573 (Mem.)
N.E.3d 573 2015) (A (Ohio 2015)
(Men) (Ohio
judge's self-assessment of impartiality "entitled to impartiality isis "entitled weight."); Philips v. Stare, to some weight."), P.3d State, 271 P.3d
457, 464 (Alaska Ct. 457,464 App. 2012)
Ct. App. fair and 2012) (holding "a judge's conclusion that they could remain fair
impartial is accorded great deference."); rel. Bates v. Rea, 922 S.W.2d 430, 431 deference."), see also State ex rel.
(Mo. App. 1996) (recognizing an appellate 1996) (recognizing presumption that appellate presumption judge will not hear a matter in that aa judge
cannot be impartial).
which he cannot
relationship with Governor Leon Here, Presiding Judge Lamorena has indicated that his relationship
Guerrero ability to Guerrero will not affect his ability preside over this case.
to preside This merits case. This some deference. As the merits some
has explained:
First Circuit has explained:
[In disqualification decisions], aa rough disqualification decisions], continuum of sorts rough continuum sorts emerges from a study of the case law. At one end of end are situations in are situations which the in which hypothesis of the hypothesis partiality is ofpartiality
so compelling that the judge has no real choice but real choice to recuse herself. At the other but to
hypothesis of
end are situations in which the hypothesis partiality is so tenuous that the judge ofpartiality judge has no real sit. Between these two polar real choice but to sit. extremes lies polar extremes lies a zone inin which the district discretion holds sway.
district judge's discretion case falls sway. If a case gray falls within this gray
area, a court of appeals court of ought not to appeals ought to interfere.
In rre United States, 158 F.3d 26, States, 158 26, 31 (1st Cir. 1998) (citations (citations omitted). The Court finds the Court finds
presented issue presented disqualification to issue of disqualification fall within the "gray area"
to fall described above. Defendant's area" described
claim b le person im thatt aa rreasonable
ea s ceive bbiass du s on might pperceive o PPresiding due t to u dge LLamorena's r es iding JJudge a mor ena 's
7
DECISION AND ORDER DENYING DEFENDANT'S RENEWED RENEWED STATEMENT OF OBJECTION 77 G.C.A. G.C.A. §§6107 CF0446-23; CF0446-23; People of of Guam Arthur U. San Guamv.v.Arthur Agustin, et San Agustin, el al.
relationship with relationship the Leon Guerrero with the given the Guerrero family is not overwhelming, given analysis below, but the analysis
neither is it entirely neither trivial, given entirely trivial, that he given that disqualify himself in the Ybanez he did disqualify that Ybanez case for that
reason. Thus, reason. Presiding Judge Thus, Presiding Lamorena's view that Judge Lamorena's can continue that he can to preside continue to over this preside over case,
this case,
while not dispositive, is entitled to "some weight" in to "some the court's in the analysis. lnderlied, court's analysis. Inderlied, 48 N.E.3d at
573.
B. Disqualification is Not Automatic Based on a Prior Disqualification
efenda nt ' s Renewed Defendant's Objection R enewed O er t s thatt bbecause ject ion asserts r es iding JJudge eca e PPresiding u LLamorena a mor ena
disqualified himself disqualified in this case as well. To analyze himself in the Ybanez case, he must be disqualified
proposition, the this proposition, must first the Court must determine how the Ybanez case disqualification affects the first determine
instant case.
Court begins
The Court with the begins with general principle the general that disqualification principle that is aa case-specific disqualification is and case-specific and
fact-driven inquiry. See, Ag., Nichols, See, e.g., (judicial disqualification is Nichols, 71 F.3d at 351 (10th Cir. 1995) Uudicial
"extremely fact "extremely must be fact driven and must judged on be judged [its] unique on [its] facts and circumstances more than by unique facts
jurisprudence."), In re United States, comparison to situations considered in prior jurisprudence."); 158 F.3d at 31 States, 158
("Typically, cases implicating [the federal judicial disqualification statute] are fact-specific, and disqualification statute]
sui generis."), thus Sui McCullough v.
generis. "); McCullough Kitzman, 50 S.W.3d v. Kitzman, 87, 89 (Tex.
S.W.3d 87, App. 2001)
(Tex. Ct. App. ("The 2001) ("The
determination of whether recusal determination necessary must be made recusal is necessary on aacase-by-case made on fact-intensive case-by-case fact-intensive
basis.").
p l y i n g this Applying i n c i p l e, aa judge's h i s principle, r i o r ddisqualification d g e' s ppnor i o n e case a l i f i c a t i o nini n one es nnot a s e does ot
automatically disqualify the judge in another case. See Jarp v. Jarp, Jars v. 614, 617 (Fla. Ct.
Jars, 919 So.2d 614,
recusals, without
App. 2006) ("Prior recusals, more, do not without more, objectively demonstrate not objectively an appearance demonstrate an of appearance of
partiality."); Ex parte Rogers, 218 So.3d 859, 866 (Ala. partiality."), of ordinary (Ala. Ct. App. 2016) ("A person of
prudence could recognize that the circumstances and conditions that required a judge to recuse
8
I
DECISION AND ORDER DENYING DEFENDANT'S RENEWED RENEWED STATEMENT OF OBJECTION 77 G.C.A. G.C.A. §§6107 CF0446-23; People CF0446-23; ofGuam People of v. Arthur U San Guam v. Agustin, et al.
San Agustin,
himself or herself in aa case might not case might be present not be or applicable present or in aa subsequent applicable in case"); In re subsequent case"),
ofLewis, 495 S.W.3d 341, 344 (Tex. Ct.
Commitment of App. 2016)
Ct. App. (stating "that 2016) (stating Judge Sailer "thatJudge has
Seiler has
been reused othercases recusedininother not dispositive"
cases isis not as to dispositive" as recused in to whether the same judge must be refused
the current case). the current Instead, the case). Instead, is whether question is
the question the specific whether the grounds for specific grounds disqualification fordisqualification
alleged here are sufficiently similar to those alleged in Ybanez.
c. C. The Record Here is Distinguishable the Ybanez from the
Distinguishable from Ybanez Case Record
Defendant argues this Defendant argues case will present this case similar basis present aa similar for disqualification basis for as in the disqualification as
because Defendant intends to put at issue "the actions of the Governor during the Ybanez case because
public health emergency caused public health COVID-19"; "[t]he Governor's caused by COVID-19", executive budget, and the Governor's executive
allocation resources among executive allocation of resources DPHSS"; and executive agencies, including DPHSS", "communications and "communications
between the Office, DPHSS, the Governor's Office, of the Attorney DPHSS, and [the Office of General]." Renewed Attorney General]."
Objection at 2-3. Defendant also asserts he will call "the custodian of asserts he of the of record for the office of
actions during
Governor of Guam, relative to the Governor's actions the relevant period in this matter,"
during the
witness for
as a witness other pending for other motions. Id.
pending motions. Presiding response, Pr
t 2.2. InInr esponse,
Id aat Lamorena's Judge La
esiding Judge mor ena
Answer asserts that "subpoenaing asserts that and analyzing "subpoenaing and communications from analyzing communications Office from the Governor's Office
will not be a central issue in this case." Answer Answer at 2.
and will
The Court cannot know, and not speculate, will not how the speculate, how case will the case developininthe will develop future.
thelecture.
instead confine its analysis The Court must instead the facts analysis to the record and the contained therein as it facts contained
exists today. See Cheney v. US. Dist. Court US. Dist. for Dist.
Court for OfColombia, Dist. Of 913, 914 Colombia, 541 U.S. 913, (2004)
914 (2004)
("The decision whether a judge's impartiality can 'reasonably impartiality can be questioned'
'reasonably be is to questioned' is be made in to be
light of facts as of the facts they existed, and not as as they they were surmised or reported.");
as they Earles v.v. Ahlstedt, reported."), Eagles Ahlstedt,
591 So.2d 741, 746 (La. Ct. App.
(La. Ct. 1991) (review of App. 1991) disqualification request "must be limited to of disqualification
the record."). At this record."). At there are no facts this time, there the record facts in the to corroborate record to claims corroborate Defendant's claims
9
DECISION AND ORDER DENYING DEFENDANT'S RENEWED STATEMENT OF OBJECTION DEFENDANT'S RENEWED
77 G.C.A. G.C.A. §§6107 CF0446-23; CF0446-23; People People of v. Arthur
of Guam v. Arthur U
U.San Agustin, et al.
San Agzzslin,
Defendant has
regarding what will be at issue in the case. Defendant not filed has not witness list, filed aa witness so itit is unclear list, so
whether anyone from whether anyone the Office from the ofthe
Office of Governor will the Governor be called will be at trial.
called at Defendant has not filed an trial. Defendant
list, so
exhibit list, it is so it unclear whether
is unclear to what extent Office of the Governor whether or to communications Governor communications
will be implicated at of records for the at trial. Defendant also claims that he will call the custodian of
of the Governor
Office of as aa witness Governor as for certain witness for motion hearings, certain motion hearings have not hearings, but those hearings
happened yet. While itit is issues involving the Office of is possible that issues arise in of the Governor may arise
the future, at this future, at time they this time are hypothetical, they are and thus hypothetical, and outside the thus outside Court's review.
the Court's
contrast, in the Ybanez By contrast, case, Presiding Ybanez case, not disqualify Presiding Judge Lamorena did not himself disqualify himself
an allegation
merely on an of the Governor would be at issue.
allegation that communications with the Office of
himself because there existed a "subpoena covering all communications Instead, he disqualified himself
between the Office of or attorneys with [an executive agency]." Answer of the Governor employees or
disqualified himself
at 2. In other words, he disqualified that the case himself because there was tangible evidence that
the Office
would involve the of the Office of Governor, thereby the Governor, implicating his thereby implicating relationship with his relationship with the Leon
tangible link
Guerrero family. Here, there is no similar subpoena or other tangible between Defendant and link between
Governor Leon Guerrero. This case is therefore distinguishable from the Ybanez case: while the
requiring Presiding Judge Lamorena's disqualification in the Ybanez case was tangible and issue requiring
hin the within ecor d of tthat he record ha cacase, tthe isissue e isis not here
s u her . S Since not. potential
ince p ot future ent ia l fu grounds t u r gr ou for
for
beyond the
disqualification are beyond scope of the scope this Cou1*t's ofthis review at Court's review this time, at this the Court will consider time, the
only those facts established in the record. only
D. of Bias is Not Clear and Indisputable Appearance of
The Alleged Appearance
undisputed facts:
The Court recognizes the following undisputed Lamorena has a facts: (1) Presiding Judge Lamorena
close personal relationship with Governor Leon Guerrero and/or her family;
relationship with family, (2) Governor Leon
Guerrero is the Guerrero is head of the Executive the head of Guam, Executive Branch of the Government of and she Guam, and appointed
she appointed
10
Q
DECISION AND ORDER DENYING DEFENDANT'S RENEWED STATEMENT OF OBJECTION OBJECTION
77 G.C.A. G.C.A. §§6107 CF0446-23; of Guam v.v. Arthur CF0446-23; People of Arthur U. San Agustin, et al.
al.
Defendant Defenda nt too his his posit ion ass Director position ect or of of DPHSS;
DP HS S , (3)
(3) DPHSS
DP HS S is
is a line
line aagency
gency wit
within tthe
Branch; and (4)
Executive Branch, ( the core core issue
issue in
in this
this case
case is
is whether
whether sanitary
sanitary permits were properly
issued to issued to public public schools;
schools, this
this will
will require
r equir eexamination
examinationofofDPHSS
DPHSSand
andGuam
GuamDepartment
Depament of
of
Education, another Education, another agency agency within
within the Executive
Executive Branch.
Branch. TThese facts,
facts, taken
taken individually
individually or
collectively, do not require the disqualification of Presiding Judge Judge Lamorena because they do not not
create a "clear and indisputable" appearance appearance of
of bias.
bias. See In re
re Shimer,
Shiver, 215 Fed. Apps.
Appx. 149,
149, 150
150
(3d Cir. (ad Cir. 2009) (stating (stating that the standard standard for the appellate appellate court
court to
to disqualify
disqualify the
the district
district court
court
judge is whether he had a "clear and indisputable obligation to disqualify himself.").
Although Presiding Judge Lamorena has aa relationship relationship with the Leon Leon Guerrero
Guerrero family,
family,
neither Governor Leon Guerrero nor her family family members
members are
are parties
parties to this case, and no no party
party
has identified her or her family members members as
as potential witnesses. Based on the record at at this time,
this time,
Governor Leon Governor Leon Guerrero holds no no more
more than
than aa minor, indirect
indirect interest in the outcome of of the
the case.
case.
This is not sufficient to to create
create an
an appearance
appearance of
of bias;
bias, "friendship
"friendship between
between the judge
judge and aa person
with an interest in the case is not sufficient grounds to reverse a judge's judge's failure
failure to recuse." United United
States States v.v. Jordan, Jordan, 49
49 F.3d 152,
152, 157
157 (5th Cir.
Cir. 1995)
1995) (citing
(citing Vieux
Vieux Carie
Carre Property
Property Owners,
Owners,
Residents, and Associates, Residents, and Associates,Inc.
Inc. v.v. Brown,
Hrown, 948 F.2d 1436 (5th Cir. 1991), 1436 (5th 1991); see alsoMK.
see also MK Metals,
Metals,
Inc. v. National Steel Corp., Inc. v. 593 F.
Corp., 593 F. Supp.
Supp. 991,
991, 995
995 (N.D.
(N.D. Ill.
Ill. 1984)
1984) ("To
("To my
my knowledge
knowledge every
every
federala l court feder cou r t faced ced withh aarguments
r ment s for rrecusal
ecu l bbased
ed on
on frfriendship
iends hip ha
have fou nd r recusal
found ecu s a
unnecessary.").
A reasonable person would not find that Presiding Presiding Judge
Judge Lamorena's friendship with with the
the
Leon Guerrero family creates creates a "clear and indisputable"
indisputable" appearance
appearance of
of bias at this time
at this time because
because
Governor Leon Guerrero Guerrero is not directly
directly connected to
to this
this case.
case. For
For that
that same reason,
reason, the
the other
other
facts connecting Defendant to undisputed facts to Governor Governor Leon
Leon Guerrero-his
Guerrero-his employment
employment within
within the
the
11
DECISION AND ORDER DENYING DEFENDANT'S RENEWED STATEMENT OF OBJECTION OBJECTION
77 G.C.A. G.C.A. §§ 6107 6107
CF0446-23; CF0446-23; People of of Guam
Guamv.v.Arthur
Arthur U.
U San Agustin, et al.
San Agustin, al,
Branch, his
Executive Branch, his appointment to his current role role at DPHSS,
DPHSS, and
and the
the involvement of
of other
Executive Branch Executive Branch agencies in the the case-do
case-do not
notcreate
createaaclear
clearand
andindisputable
indisputable appearance
appearance of
of bias
bias
either. A reasonable person would not assume Presiding Judge Lamorena Lamorena is
is biased
biased for
for or
or against
individual who works for an individual for an an Executive
Executive Branch
Branch agency,
agency, or
or for
for or
or against
against the
the agency
agency itself,
itself,
because of simply because of his his friendship
friendship with
with the
the head
head of
of the
the Executive
Executive Branch-especially Branch-especially when
when the
the
headd of of the the Executive
Executive Br a nch is
Branch is neither
neither aa pa r ty nor
party witness to nor aa witness the cacase.
to the se. TThus,
hus, beca use
because
Governor Leon Guerrero, her family, and the Office of of the Governor
Governor are
are not
not directly
directly implicated
in this case at this this time,
time, Presiding
Presiding Judge
Judge Lamorena's friendship friendship with the Leon Guerrero Guerrero family
does not not create an objective appearance appearance of
of bias that warrants disqualification.
CONCLUSION
For the foregoing reasons, Presiding Judge Lamorena's Lamorena's disqualification disqualification is
is not
not warranted
warranted
under under 77 G.C.A.
G.C.A. §§ 6105(a)
6105(a) at
at this
this time. The Renewed
time. The Renewed Objection Objection is
is therefore
therefore DENIED.
DENIED.
[ACT OCT 33 U02023
2023 . `.
SO ORDERED:
---------
HO BLE l}An!A\A. GUTI EZ Jud Superior Coukfof Guam'