People v. San Augustin

• Court: Superior Court of Guam
• Decided: September 11, 2023
• Docket: CF0446-23
• Status: Unknown

Opinion

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1 fm SEP I I I; Q: 25 2 CLERK OF c0uR1

3 IN THE SUPERIOR COURT OF GUAM 4

5 PEOPLE OF GUAM, 6 Plaintiff, Criminal Case No. CF0446-23 7 vs. 8 DECISION AND ORDER (Disqualification ARTHUR U. SAN AUGUSTIN, 9 Pursuant to 7 G.C.A. § 6107) MASATOMO NADEAU, 10 Defendants. 11

13 INTRODUCTION

14 This matter is before the Honorable Alberto E. Tolentino ("Judge Tolentino"), for the 15 limited purpose of addressing Arthur U. San Augustin's ("Defendant") Statement of Objection 16 filed 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. Arriola, Ir. 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

22 BACKGROUND

23 On July 3, 2023, the Grand Jury indicted Defendant on the following charges: (l)

24 Tampering with Public Records (As a Second Degree Felony), (2) Obstructing Governmental

25 Functions (As a Misdemeanor), and (3) Official Misconduct (As a Misdemeanor). Indictment, 26 July 3, 2023. The case was originally assigned to Judge Tolentino. Notice of Judge 27 Page 1 of Hz 1 Assignment, July 27, 2023. Judge Tolentino reused himself under 7 GCA § 6105. Form 2 One-Disqualification, July 31, 2023. The case was then assigned to Presiding Judge 3 4 Lamorena. Notice of Judge Assignment, Aug. 2, 2023. On August 22, 2023 Defendant filed

5 the Statement of Objection. On August 25, 2023, Presiding Judge Lamorena filed an Answer

6 to Statement of Objection. On August 30, 2023, the People filed a Memorandum of Points and

7 Authorities in Response to Statement of Objection 7 GCA § 6107.

8 DISCUSSION

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

10 under 7 G.C.A. § 6107. Van Dex v. Superior Cr., 2008 Guam 7 1] 17. Ajudge shall be 11 disqualified from "any proceeding in which his or her impartiality might reasonably be 12 questioned..." 7 G.C.A. § 6105(a). Such impartiality can be demonstrated: 13 (1) Where he or she has a personal bias or prejudice concerning a party, or 14 personal knowledge of disputed evidentiary facts concerning the 15 proceeding,

16 (2) Where in private practice he or she served as a lawyer in the matter in controversy, or a lawyer with whom he or she previously practiced law 17 sewed during such association as a lawyer or either has been a material witness concerning the matter, 18

19 (3) Where he or she has sewed in governmental employment and in such capacity participated as counsel, advisor, or material witness concerning the 20 proceeding or, as such government employee, expressed an official opinion concerning the merits of a particular matter in controversy, 21 (4) Where he or she knows that he or she, individual or as a fiduciary, or his or 22 her spouse or minor child residing in his or her household, has a financial 23 interest in the subject matter in controversy or is a party to the subject matter in controversy or is a party to the proceeding, or in any other interest that 24 could be substantially affected by the outcome of the proceeding,

25 (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: 26

27 (A) is a arty to the proceeding, or an officer, director, or trustee of a party,

Page z of 12 1 (B) is acting as a lawyer on the proceeding, (C) is known by the Judge to have an interest that could be substantially 2 affected by the outcome of this proceeding, (D) is to the Judge's knowledge likely to be a material witness in the 3 proceeding. 4 7 G.c.A. § 6105(b). 5 I. 6 Defendant seeks Presiding Judge Lamorena's disqualification from this case on the

7 basis of an alleged bias towards the current Attorney General ("AG") of Guam, Douglas

8 Moylan. Defendant argues that then-candidate AG Moylan listed Presiding Judge Lamorena as 9 a "professional reference" on a resume posted to AG Moylan's public Facebook profile, and 10 that this amounts to a tacit endorsement of AG Moylan's candidacy. Statement of Objection at 11 5. The "professional reference" is based on AG Moylan's service as Presiding Judge 12 Lamorena's law clerk thirty years prior. Statement of Objection at 4. Defendant further argues 13 14 that Presiding Judge Larnorena's "endorsement of AG Moylan would likely be construed as the

lending of the prestige of Presiding Judge Lamorena's judicial office to advance the interests of 15

16 AG Moylan". Id Defendant avers that the endorsement of AG Moylan is particularly relevant

17 in this case, as it "relates to alleged "government comlption" and the political investigations of

18 public officials" Id The resume and the "professional reference" contained therein is still

19 posted on AG Moylan's public Facebook page, which is currently being used to provide 20 official announcements for the Office of the Attorney General. Id 21 Presiding Judge Larnorena denies that Defendant provided a reasonable basis for 22 disqualification. Presiding Judge Lamorena asserts that 1) he never publicly endorsed AG 23 Moylan or any other candidate in the 2022 election cycle, (2) he has never knowingly or 24 intentionally created a Facebook profile, and that (3) AG Moylan's resume and "professional 25

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

27 input or direction in". Id

Page 3 of 12 1 11. 2 Defendant does not allege that Presiding Judge Lamorena participated in the case as a 3 lawyer in private practice, that he is a material witness concerning the matter, nor that he or 4

some person within the third-degree relationship to him retains an interest in the proceeding. 5

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

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

8 whether Judge Larnorena's impartiality might be reasonably questioned under Section 6105(a).

9 When evaluating such a contention, the Supreme Court of Guam has instructed that "what 10 . S . a G . Asa . matters is not actual blas, but the appearance of blas. Van Dex v. Superior Court of Guam,

11 2008 Guam 7 1] 32 (quoting Dizon v. Superior Court of Guam, 1998 Guam 3 1] 10, n.3). The 12 appearance of bias is judged from the standard of a reasonable person given all the relevant 13 facts in the controversy. Id; see also Ada v. Gutierrez, 2000 Guam 22 1] 12. 14 A. 15

16 Title 7 GCA § 6105 is based on 28 U.S.C. § 455 and governs the substantive 17 grounds for disqualification of judges. Section 6105 provides: 18 § 6105. Grounds of DisqualiHcation. 19

20 (a) Any judge shall disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned, but if, 21 following complete disclosure to all parties in the proceedings of the reasons for disqualification, all parties agree to having the judge 22 continue to sit in the proceedings, he or she need not disqualify himself or herself. 23

24 7 GCA § 6105(a) (2013) (emphasis added), See Ada v. Gutierrez, 2000 Guam 22 11 12,

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

26 when judge's "impartiality might reasonably be questioned." 7 GCA § 6105(a). In other

27 words, "disqualification may occur even though a judge is not actually biased or Page 4of 12 1 prejudiced, and has no extrajudicial knowledge of disputed evidentiary facts." US v.

2 Salem re, 164 F.Supp.2d 49, 80 (D. Mass. 1998) (citation omitted). Actual bias is not a 3 prerequisite for recusal, as the appearance of impropriety is enough. See Liteky v. United 4 States, 510 U.S. 540, 548 (1994). "The standard for recusal is the appearance of 5 impropriety and [ ] no actual showing of bias is necessary for recusal to lie." Dizon v. 6 7 Superior Cr., 1998 Guam 3 1] 32. The purpose of Section 455(a) "to promote public

8 confidence in the integrity of the judicial process" and to avoid even the "appearance of

9 impropriety." Liueberg v. Health Serve. Acquisition Corp., 486 U.S. 847, 860 (1988).

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

11 in the judiciary as avoiding impropriety itself." US v. Hollister, 746 F.2d. 420, 425-26 (8th 12 Cir. 1984), See also 28 U.S.C. § 455(a). "[J]udges and justices have 'as strong a duty to 13 sit when there is no legitimate reason to recuse as [they] do[ ] to recuse when the law and 14 facts require."'People v. Tennessee, 2010 Guam 12 1]49 (quotingNichols v. Alley, 71 F.3d 15 347,351 (10'" Cir. 1995)). 16

17 B.

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

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

20 whether a reasonable person with knowledge of all the facts would conclude that a judge's 21 impartiality might reasonably be questioned.See United States v. Dudley, 783 F.2d 934, 22 939 (9th Cir. 1986). The Supreme Court of Guam has adopted this objective standard and 23 has held that "[t]he appearance of bias is judged from the standard of a 'reasonable person' 24 25 who knows all the facts, and understands the 'contexts of the jurisdictions, parties, and

26 controversies involved,' including such 'realities of the Guam judicial system' as the

27 relatively small number of lawyers in the Guam bar and 'the nature of Guam families.Ill

Page 5 of 12 1 Van Dox, 2008 Guam 7 11 32 (quoting Ada, 2000 Guam 22 'lm l2-13). Section 455(a)

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

3 unique facts and circumstances more than by comparison to situations considered in prior 4 jurisprudence." United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995). 5 III. 6 Generally, when a former law clerk appears before a judge for whom they once 7

clerked, it is insufficient grounds to make a reasonable person question a judge's 8

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

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

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

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

17 the case during his clerkship).

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

19 adopted recusal miles which prohibit former law clerks from practicing before their judge

20 for a period after their clerkship. See Ag., Ghee v. Artuz, 285 F.Supp.2d 328, 329 21 (E.D.N.Y. 2003) (citing U.S. Sup. Ct. R. 7) (The U.S.S.C. prohibits a former law clerk 22 from appearing for two years from their date of separation.), In re Martinez-Catala, 129 23 F.3d213,218 (let Cir. 1997) (citing 1st Cir. R. 46) ("Cou1"ts often have prophylactic rules 24 that forbid a former law clerk from appearing in that court for a year or more after the 25

clerkship, but no such rule is claimed to have been violated in this case."). The Eighth 26

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

Page 6 of 12 1 See Patzner v. Burkett, 779 F.2d 1363, 1372 (8th Cir. 1985). Initially, in Hollister, the

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

g In Patzner, the Eighth Circuit Court of Appeals later explained that it had promulgated a

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

10 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 11 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 12 on brief in any case heard during a period of one year following separation 13 from service with the Court.'

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

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

16 [disqualification] to be resolved by the trial judge ...." Id at 1372. 17 There are also federal district courts with case law establishing similar recusal 18 rules applicable to judges and law clerks.See e.g. Smith v. Pepsico, 434 F.Supp. 524, 526 19 (S.D.F1a. 1977) (recognizing that where judges and their former law clerks were 20 concerned, the custom was a one-year recusal period in the district), Duke v. Pfizer, Inc., 21

22 668 F .Supp. 1031, 1036 (E.D.Mich. 1987) (citations omitted) ("[A] one- or two-year

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

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

25 clerks from appearing before the court for one year). 26

Page 7 of 12 1 The Defendant contends Presiding Judge Lamorena's impartiality might

2 reasonably be questioned based on his former law clerk's appearance in this matter and 3 provides the following arguments: (1) that he and AG Moylan enjoyed a close professional 4 relationship for approximately six months during his clerkship, and Presiding Judge 5 Lamorena relied on AG Moylan to conduct research relating to his assigned docket and 6 7 provide guidance on legal, procedural, and other issues, (2) that despite thirty years

8 between AG Moylan's departure as Presiding Judge Lamorena's law clerk and his election

9 to Attorney General, a reasonable person might question his impartiality, as it creates the

10 appearance of impropriety requiring recusal. Objection at 3. The Defendant further

11 contends that Presiding Judge Lamorena gave his tacit endorsement often-candidate AG 12 . . . - _ ,, Moylan's campaign due to the former's name being listed as a "professional reference 13 on AG Moylan's personal Facebook profile. Id 14 Presiding Judge Lamorena admits AG Moylan was his law clerk from 2001 to 15 early 2002. Answer at 2. Presiding Judge Lamorena contends that the professional 16

17 reference posted on Facebook indicates (1) that Doug Moylan sewed as his law clerk 30

18 years ago, and (2) that as someone who employed him, he is knowledgeable of Moylan's

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

20 existence of the resume doesn't suggest his advocation or endorsement of any specific 21 skill/ability AG Moylan possesses, or of his 2022 campaign in general. Id 22 Absent other indications of bias or prejudice, this Court will not assume that a 23 reasonable person knowing all of the circumstances would question Presiding Judge 24 25 Lamorena' s impartiality based on AG Moylan's prior service as Presiding Judge

26 Lamorena's law clerk thirty years prior.

Page 8 of 12 1 Iv. 2 Next, the court looks at the Defendant's allegation that Presiding Judge Lamorena 3 endorsed AG Moylan's candidacy in the 2022 general election. 4 There are circumstances when a judge has a personal relationship with an attorney 5 that would make it difficult for a judge to be impartial, or to be perceived as impartial by 6 an objective observer. See United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. 1985). 7

Courts have frequently noted that a "judge's friendship with counsel appearing before him 8

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

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

11 1288, 1295-96 (5th Cir. 1990)). "A prior co-counsel relationship accompanied by an 12 additional association, such as a close personal or social involvement, or an ongoing 13 Iv financial relationship, may cause a reasonable person to question a judge's impartiality. 14 Bonelli v. Bonelli, 570 A.2d 189, 192 15 (Conn. 1990) (citing Potashnick v. Port City 15 Construction Co., 609 F.2d 1101, 1114-15 (5th Cir. 1980) (holding that judge with an 16

extensive business and professional relationship with counsel should have disqualified 17

18 himself) .

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

20 relationships between a judge and attorney are common. See Murphy, 768 F.2d at 1537. 21 That court observed that "judge need not disqualify himselfjust because a tikiend-even a 22 close friend-appears as a lawyer." Id The court, however, noted "that when the association 23 exceeds 'what might reasonably be expected' in light of the associational activities of an 24 ordinary judge, the unusual aspects of a social relation may give rise to a reasonable 25

26 question about the judge's impartiality." Id at 1538 (internal citation omitted). A judge's

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

Page 9 of 12 l cases where the degree of intimacy warrants disqualification. Id at 1538 (finding that an

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

8 opposing counsel since he was a kid).

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

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

11 AG Moylan's resume and "professional reference" contained therein was a unilateral act 12 . . . . by AG Moylan which Presiding Judge Lamorena "gave no input or direction in", (3) that

13 he has never knowingly or intentionally created a Facebook profile, (4) that the existence 14 of a professional reference only indicates that AG Moylan once served as Presiding Judge 15 16 Lamorena's law clerk, and that Presiding Judge Lamorena is knowledgeable of AG

17 Moylan's abilities as a lawyer based on that prior employment. Answer at 2.

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

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

20 judge's impartiality. Unlike in Murphy, there were no plans to spend time together outside 21 the context of their professional relationship as legal colleagues practicing in the same 22 community. In the present case, Presiding Judge Lamorena neither had personal 23 engagements with AG Moylan, nor did he attend political campaign functions on behalf 24 of then-candidate AG Moylan. Like in In Re Cooke, the relationship between Presiding 25

Judge Lamorena and AG Moylan will likely not cause a reasonable person to question the 26

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

Page 10 of Hz 1 nature. Unlike inBonelli, there is no business or financial relationship between Presiding

2 Judge Larnorena and AG Moylan. Finally, unlike in Murphy, the social relation 3 established between Presiding Judge Larnorena and AG Moylan does not imply extensive 4 personal contacts such that there would be a special willingness to rely on AG Moylan's 5 representations as a prosecutor, nor a reluctance to hand a defeat to the Attorney General 6 in a highly visible conception case. 7

Indeed, it appears Presiding Judge Lamorena was not even aware of the fact that 8

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

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

11 cases, as the record is devoid of any ongoing personal or social relationship between Judge 12 . . Lamorena and AG Moylan, nor does the record contain evidence that Judge Lamorena 13 publicly supports AG Moylan's "tough on crime" political platform. Absent any facts to 14 the contrary, a reasonable person would not End that Presiding Judge Lamorena's 15 impartiality should "reasonably be questioned" to warrant disqualification. 16

Page 11 of 12 1 CONCLUSION 2 For the above reasons, the Court DENIES Defendant's request to disqualify the 3 4 Presiding Judge.

6 SO ORDERED, this day of 018 S£r 2023 2023. 7

9 I r

10 HONORABLE ALBERTO E. TOLENTINO 11 Judge, Superior Court of Guam 12

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