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3 OVUM
4
5
6 IN THE SUPERIOR COURT COURT OF
OF GUAM
GUAM
7 PEOPLE PEOPLE OF GUAM, Criminal CriminalCase
Case No. CF0518-24
8 GPD Report Report Nos.
Nos. 23-07628
23-07628/I23-24350 /
v. 23-24438 9
10 10 FRANKLIN JOEL SAN NICOLAS, DECISION AND ORDER DOB: 07/30/2004 DENYING THE THE OAG'S 0AG'S
11 11 STATEMENT OF OBJECTION Defendant. Defendant. 77 G.C.A. §6107 G.C.A. § 6107 &
& MOTION
MOTION TO
TO
12 12 DISQUALIFY 13 13 INTRODUCTION
14 14 This matter is is before
before the
the Honorable
HonorableAlberto
Alberto C.
C. Lamorena,
Lamorena, III
III upon
uponthe
theOffice
Office of the Attorney
15 15 General's General's (the (the "OAG's")
"OAG's")Statement
Statement of
ofObjection
Objection 77 G.C.A.
G.C.A. §§ 6107
6107 &
& Motion
Motion to
to Disqualify
Disqualify (the
(the
16 16 "Objection").
"Objection"). The TheOAG
OAGobjects
objectstotothe
theHonorable
Honorable Alberto
Alberto E.
E. Tolentino's
Tolentino's ("Judge
("Judge Tolentino's")
Tolentino's")
17 17 competency competencytotopreside presideover
overthe
theabove-captioned
above-captionedmatter
matter under
under 77 G.C.A.
G.C.A. §§ 6107.
6107.
18 18 Having Having considered
considered the Objection, Judge JudgeTolentino's
Tolentino's Answer, the OAG's OAG's Response,
Response, as
as well as
as
19 the 19 theapplicable applicablestatutes
statutesand
andcase
case law
lawand all relevant
and all relevantportions portions of
ofthe
the record,
record, this
this Court
Court now
now issues
issues the
20 following followingDecision Decisionand
andOrder
Order DENYING
DENYINGthe
theOAG's
OAG'srequest
requestotodisqualify
disqualifyJudge
Judge Tolentino
Tolentino and
and
21 reassign this case.
case.
22 BACKGROUND
23 Defendant is charged with with Burglary
Burglary (as 2nd Degree (as aa 2nd DegreeFelony)
Felony) (three counts)
counts) and Theft
Heh (as 2 nd
(asaa2nd
24 Degree DegreeFelony)
Felony)after
afterallegedly
allegedlybreaking
breakinginto
intoBenavente
Benavente Middle
Middle School
School and
and GSI Pacific
Pacific in
in order
order to
25 steal stealvarious various items.
items. See Indictment (Aug.
(Aug. 1, 2024).
1, 2024).
26 Judge Tolentino was subsequently Judge Tolentino assigned to subsequently assigned to preside preside over
over this criminal case.
case. See Notice of
27 Judge JudgeAssignment Assignment (Jul.
(Jul. 26,
26, 2024).
2024).
28
Decision Decision and Order Denying and Order Denying the
theOAG's
OAG's Statement
Statementofof Objection
Objection 77G.C.A.
G.C.A. §§ 6107
6107&& Motion
Motion to
to Disqualify
Disqualify
CF0518-24, CFOS People of
of Guam v.
v. Franklin Joel San
San Nicolas
Mcolas
Page of 11 Page 1 ofll 11 On July 29, On July 29, 2024,
2024,the
theOAG
OAG filed
filed their
their Statement ofObjection Statementof G.C.A. §§ 6107 Objection77G.C.A. 6107 & & Motion
Motion to
to
2 Disqualify.
Disqualify.The OAG The seeks
OAG seeksJudge
JudgeTolentino's
Tolentino'sdisqualification disqualificationon
on the
the following
following grounds:
grounds:
3 3 • Judge Tolentino's established Judge Tolentino's history of established history of disqualifying himself himself from
from matters
matters in which
4 Doug Moylan Moylan appeared
appeared as
as private
private counsel,
counsel, prevents
prevents Judge Toler from Judge Tolento from handling handling
5 matters involving the OAG matters involving OAG now now that
that Doug
Doug Moylan
Moylancurrently
currently serves
serves as
as the
the elected
elected
6 Attorney General of Guam.
General of Guam.
7 • Judge Tolentino'ss personal Judge Tolentino' personal relationship with with Attorney
Attorney General
General Moylan
Moylannecessitates
necessitates his
8 disqualification disqualification in
in matters involving
involving the OAG. Judge
Judge Tolentino
Tolentino is
is married
married to Attorney
9 General Moylan's ex-wife. and General Moylan's and Attorney Attorney General
General Moylan is the
the father
father of
of Judge
Judge
10 10 Tolentino's step-children.
Tolentino's step-children.
11 11 See Objection Objection at at 2 (Jul. 29, 2024).
2024).
12 12 On July July 31,
31,2024,
2024,Judge
JudgeTolentino
Tolentinofiled
filedhis
hisAnswer
AnswertotoObjection
Objection("Answer").
("Answer"). In
Inhis
his response,
response,
13 13 Judge Tolentino challenges udge Tolentino challenges the thetimeliness
timelinessof
ofthe
theOAG's
OAG's Objection. See Answer Answer at ,r 11
at11 11 (Jul. 31
31,
14 14 2024). Judge Judge Tolentino
Tolentinoalso
alsomade
made the
the following
followingresponses,
responses, under
under penalty of
ofperjury,
perjury, which
which the
the Court
15 15 finds particularly relevant relevant in
in its
its recusal
recusal determination:
determination:
16 16 • 116.
,r 6. That
That at
at Mr.
Mr. Moylan's
Moylan'srequest,
request,aameeting
meetingbetween
betweenhim
himand
andthe
the undersigned,
undersigned, the
undersigned's chamberstaff, undersigned's chamber staff, the the Administrator
Administratorof of the
the Courts,
Courts, and
and Mr.
Mr. Moylan's
17 17 transition chairperson,
chairperson,Mr.
Mr. Wilfred
Wilfred Aflague,
Aflague, occurred
occurred in
in December
December 2022.
2022.
18 18 • 117.
,r 7. That
That at
at this
this meeting,
meeting, Mr.
Mr. Moylan
Moylanassured
assuredme
meand
and the
the other
other members
members in
in attendance
19 19 that he heperceived
perceived nono conflict
conflict in
in his
his election
electionasas the
the Attorney
Attorney General
General and
and the prosecution
of of criminal
criminal cases
cases before
before the
the undersigned.
undersigned. It was was agreed agreed that
that the
thecircumstances
circumstances
20 underlying my recusal mattersthat recusal in matters thatMr.
Mr.Moylan
Moylan was
was a lawyer
lawyer no longer existed, to 21 wit: that that during my term
term as the
the Magistrate
Magistrate Judge and andas asaaJudge
JudgeI Ihad
hadroutinely
routinelyrecused
reused
myself myself from
from all
all matters
matters where Mr. Moylan
Moylan waswas the
the attorney
attorney of aa party
party before me on
22 the basis that he was the father of of my my minor
minorstep-children
step-children and
and that
that the minor stepstep
-
children children were
were members
members of ofand
and resided in in the household maintained maintained byby me
me and
andmymywife
wife
23 and that that as
as of
of even
even date,
date, both
both step-children
step-children have
have now
now reached
reached majority
majorityandandadulduood
adulthood
24 and have been residing at their own own residences in Guam and andin in the
theU.S.
U.S. Mainland.
Mainland.
25 • 1]8.
• ,r 8. That
ThatMr.
Mr.Moylan
Moylannever
nevermade
madean
anappearance
appearance as
as a lawyer
lawyer in
in this case.
case.
26 • 1114.
,r 14. That
That my
my wife
wife Doris L.G. Tolentino Tolentino and
and Attorney General Moylan were divorced General Moylan
27 on June 13, 1997, June 13, andthat
1997,and thatthere
therewere
weretwo
twominor
minorchildren
childrenat
atthe
thetime
timeof
of the
the dissolution
dissolution
of manage, to wit: Brandon (born 1990) and Angela (born of marriage, to wit: Brandon (born 1990) and Angela (born 1992).
28
Decision Decision and Order Denying and Order Denying the
theOAG's
OAG's Statement
Statementofof Objection
Objection77G.C.A.
G.C.A. §§ 6107
6107&& Motion
Motion to
to Disqualify
Disqualify
CF05 I8-24, People of CFOS 18-24, ofGuam v.v. Franklin Franklin Joel San
San Nicolas
Nicolai
Page of 11 Page 2 of
11
1 • 11 ,i 17.
17. II have
have never observed
observed Mr. Mr. Moylan
Moylan and and my
my wife
wife involved
involved inin any
any sense
sense in coparenting
the children of of their their marriage
marriage asas the children children have been raised and provided 2 with protection with protection and
and care to ensure their healthy ensure their healthy development development into
into adulthood,
adulthood, primarily
primarily
3 3 by my wife
wifeand
andme,
me, and
and that
that at
at present they are in fact adults adults able to conduct
conduct and
and make
their own decisions
decisions in
in life.
life.
4 • 1118.
,i 18. That based upon
uponthe
theforegoing
foregoing avennents,
avennents, thethefact
fact that
thatAttorney
Attorney General
General Moylan
Moylan
5 is the the biological
biological father
father ofofthe
theundersigned's
undersigned's stepchildren provides no stepchildren provides no basis basis for
disqualification disqualification under
under 77 G.C.A.
G.C.A. §6 l05(b) or
§ 6105(b) orthat
that the undersigned's "impartiality the undersigned's "impartiality might might
6 reasonably be questioned" as as required under under subsection
subsection(a). (a).
7 • 11
,i 19.
19. That "[u]nder
"[u]nder subsection 6l05(a), what subsection 6105(a), what matters matters is not "actual bias", but "the not "actual
8 appearance appearance of of bias." Van Van DoxDaxat ,i 32 (citing at 1132 (citingDizon
Dizon v. Super. Ct.(People), Super. Ct. (People), 1998 1998 Guam
,i 10 3 11 10n.3).
n.3). The
The appearance
appearance of of bias is judged from from the
the standard
standard of aa "reasonable "reasonable
9 person" person" whowho knows
knows allall the
the facts,
facts, and
and understands the "contents of the understands the the jurisdictions, 10 10 parties, and controversies parties, and controversiesinvolved,"
involved," including
including such "realities of such "realities of the
the Guam
Guam judicial
system" as as the relatively relatively small
small number
number of oflawyers
lawyers in
inthe
the Guam
Guam bar
bar and "the nature of nature of
11 Guam families." Id. (citation Guam families." (citation omitted).
12 12 • ,i 30.
'H 30. My wife
wife and
and Mr.
Mr. Moylan
Moylanhave
havebeen
been divorced
divorced for
for close
close to
to twenty-seven
twenty-seven years
years
13 13 and that that the
thechildren
childrenof of their
their marriage
marriage are
areadults
adultsliving
living on their
their own
own andandwell
well over the
age of
ofmajority
majorityandandthat
thatnono reasonable
reasonable person
person who
who knows
knows all
allthe
thefacts
factsand
andunderstands
understands
14 14 the contents contents of
of the
thejurisdiction,
jurisdiction, parties and andcontroversies
controversies involved
involved in in the
the Guamjudicial
judicial
system would conclude system would conclude thatthat there there exists
exists an appearance
appearance of of bias requiring requiring my
15 15 disqualification in this matter. disqualification in this matter.
16 16 Id.
17 17 On August 13, 2024, On 2024, the
the OAG
OAG filed their Response to to Judge
JudgeTolentino's
Tolentino's Answer
Answer
18 18 ("Response").The ("Response"). TheOAG OAG assertstheir
asserts theirObjection
Objectionwas
wastimely
timelyfiled,
filed,being
beingfiled just three
filedjust three (3) days days
19 19 after Judge Judge Tolentino's initial assignment.
Tolentino's initial assignment. See Response at 1-3 Response at 1-3(Aug.
(Aug. 13,
13,2024).
2024). The
The OAG also
OAG also
20 20 on their argument that
expands on thatJudge JudgeTolentino
Tolentino is biased per se, sh, arguing
arguing that
thatJudge
JudgeTolentino's
Tolentino's
21 personal relationship with Attorney General with Attorney General Moylan Moylanhas
hasnot
notsubstantially
substantially changed
changed and
and continues
continues to
22 provide aa basis for his disqualification. Id. at 3-6. provide 23 On July 31,, 2014, On 2014, this
this Court
Court was assigned to
was assigned to address
address the
theObjection.
Objection. See Notice of
24 24 Assignment of Assignment ofRecusal Judge (Jul. 31, 2024).
Recusal Judge
25 DISCUSSION DISCUSSION
26 I. 1. The The Law
Law Governing
Governing Judicial Disqualification:
27 27
28
Decision and Order Decision and Order Denying Denying the
the OAG's
OAG's Statement
Statementof ofObjection
Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0518-24,People CFOS People of
ofGuam v.v. Franklin
Franklin Joel San
San Nicolas
Page Page 33 of
of 11
\
a
1 Judicial disqualifications are Judicial disqualifications are governed governed by
by the substantiverules
the substantive rulesof
of 77 G.C.A.
G.C.A. §§ 6105
6105 and
and the
the
2 procedural rulesof7 rocedural rules off G.C.A.
G.C.A.§§6106
§§ 6106and6107.
and 6107.Section
Section6105
6105defines
definesthe
the grounds for disqualifications grounds for disqualifications
3 3 as follows:
follows:
4 (a) Any AnyJudge
Judgeshall
shalldisqualify
disqualifyhimself
himselfor orherself
herselfin
inany
anyproceeding
proceedingin
in which
which his
his or
or her
impartiality might reasonably reasonably bebe questioned, questioned,but
butif,if, following
following complete
complete disclosure to
5 all parties parties in
in the
the proceeding
proceeding ofof the
the reasons
reasons for disqualification, disqualification, all parties parties agree to
having the
the Judge continue to
Judge continue to sit in the the proceedings,
proceedings, he or she she need not disqualify 6 himself or herself.
herself.
7 (b) (b) AAJudge
Judgeshall
shallalso
alsodisqualify
disqualifyhimself
himselfororherself
herselfininthe
the following
followingcircumstances,
circumstances, but
8 if, following followingcomplete
completedisclosure
disclosuretotoall
allparties
parties in
inthe
the proceeding
proceeding ofofthe
the reasons
reasons for his
or her
her disqualification,
disqualification, all parties parties agree to having
having thethe Judge
Judge continue
continue toto sit in the
the
9 proceedings, he or sheshe need neednot
notdisqualify
disqualify himself
himself or herself:
herself:
10 10 (1) Where
Wherehe
heororshe
shehas
hasaapersonal
personal bias
bias or
orprejudice
prejudice concerning
concerning a party, or
11 11 personal knowledge of disputed of disputed evidentiary facts concerning the proceeding;
proceeding,
12 12 (2) Where
Whereininprivate
privatepractice
practicehe
heor
orshe
sheserved
served as
as aa lawyer
lawyer in
in the
the matter
matter in
in
13 13 controversy, or a lawyer lawyer with
with whom
whom hehe or
or she previously practiced law served during during such association as such association as a lawyer or or either
either has
has been
been aa material
material witness
witness
14 14 concerning the the matter,
matter;
15 15 (3) Where Whereheheororshe
shehas
hasserved
servediningovernmental
governmentalemployment
employment andand in
in such
such
capacity participated
participated as counsel,
counsel, advisor or material material witness
witness concerning
concerning the
16 16 proceeding proceeding or, as
as such
such government employee, expressed government employee, expressedananofficial official opinion
opinion
17 17 concerning the the merits ofof the
the particular matter
matter in
in controversy;
controversy,
18 18 (4)
(4)Where
Whereheheororshe
sheknows
knowsthat
that he
he or
or she,
she, individually or or as as a fiduciary, or
or his
or her spouse or her spouse or minor child residing in his or her household, in his or her household, has a financial 19 19 interest in the subject matter matter inin controversy or isis aa party party to
to the
the subject
subject matter
matter
20 20 in controversy or is a party to the proceeding, or in any other interest in controversy or is a party to the proceeding, or in any other interest that could be substantially
substantially affected by the outcome of the proceeding;
proceeding,
21 (5) (5) Where
Whereheheororshe
she or
or his
his or
or her
her spouse,
spouse, or a person within within the
the third
third degree
degree of
of
22 22 relationship to either either of
ofthem,
them, or
or the
the spouse of such person:
person:
23 23 (A) (A)isisa aparty
partytotothe
theproceeding,
proceeding,or oran
an officer,
officer,director,
director,or
ortrustee of a
trustee of
24 24 party;
party,
(B) (B)isisacting
actingas as aa lawyer
lawyer in
in the
the proceeding,
proceeding;
25 (C)
(C) is known by the Judge to have an is known by the Judge to have an interest interest that could be substantially affected affected byby the
the outcome of the proceeding;
proceeding,
26 26 (D) (D)isistotothe
the Judge's
Judge's knowledge
knowledge likely
likelytoto be
beaa material
material witness
witness in
in the
27 27 proceeding.
proceeding.
28 See 7 28 See 7 G.c.A.
G.C.A. §§ 6105.
6105.
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement
Statementof
ofObjection
Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0518-24, CF0518-24, Peopleof
ofGuam v. Franklin
Guam v. Franklin Joel
Joel San
SanNicolas
Nicolai
Page of 11 Page 4 of 11 1 Section Section 6106
6106 compels
compels aa judge
judge to
to disclose
disclose aa disqualification disqualificationlisted
listedunder § 6105
under§ 6105:
2 Whenever a Justice or Judge shall have knowledge of of any fact fact or
or facts
facts which,
which, under
of 6105 of
the provisions of of this Chapter, disqualify him him or
or her to sit or act as such in any 3 3 action or proceeding pending before him or her, it shall be his or her duty to declare 4 the same in open court and cause a memorandum thereof thereof to be entered in the minutes. It shall be the duty of
of the clerk to transmit forthwith a copy of of such memorandum to 5 each party or his or her attorney who shall have appeared in such action or proceeding, attorney when the declaration is except such parties as are presented in person or by attorney 6 made. 7 7 See 7 G.C.A.
G.C.A. §§ 6106.
6106.
8 If aa judge If judge fails
fails to
to disclose
disclose aa disqualifying disqualifying factor under§6105, factor under 6105, then
then any
any party
party to
to the
the action who
action who
9 as appeared 10 has appeared in in the
the case may raise
case may raise the
the objection to competency.
objection to competency. In In this
this regard,
regard, §§ 6107
6107 provides
provides as
as
10
11 follows: 11 follows:
12 12 Whenever a Justice or Judge who shall shall be be disqualified
disqualified under the provisions of of this Chapter to
to sit or act as such in any action action or proceeding pending before him or her 13 13 neglects or fails to declare his or or her disqualification
disqualification in the manner provided by this Chapter, any party to such action or proceeding who has appeared therein may present 14 14 statement objecting to the hearing of to the court and file with the clerk a written stat=ent of such 15 15 matter or any trial of of any issue of
of fact or law in such action or proceeding before such Justice Justice or Judge,
Judge, and setting
setting forth
forth the fact or facts
facts constituting
constituting the ground
ground of the
16 16 disqualification disqualification ofof such such Justice
Justice or Judge.
Judge. Copies of of such such written
written statement
statement shall
shall
forthwith be served by the presenting party on each party, or his or or her attorney, who 17 17 has appeared in the action or proceeding and on the Justice or Judge alleged in such 18 18 statement to be disqualified.
19 19 Within ten (10) days after the service of of such statement as above provided, or or ten ten (10)
days after the filing ofof any statement, statement, whichever is later in time, the Justice or Judge 20 20 alleged therein toto be
be disqualified
disqualified may
may file
ile with
with the
the clerk
clerk his
his or
or her
her consent
consent in writing
21 that the action or proceeding continue without him him or her, her, or may file with the clerk his or her written answer admitting or denying any or all of of the allegations contained 22 22 in such statement and setting forth forth any additional fact or facts material or relevant to the question of his or her disqualification. The clerk shall forthwith transmit a copy of 23 the Justice's or Judge's consent or answer to each party or his or her attorney who shall have appeared in such action or proceeding. Every such such statement and every answer 24 24 shall shall be verified
verified in
in the
the manner
manner prescribed
prescribed for
for the
the verification
verification ofof pleadings.
pleadings. The
25 statement statement of a party objecting objecting toto the Justice Judge on the ground Justice or Judge ground of his or her disqualification disqualification shall
shall be
be presented
presented at the earliest practicable practicable opportunity
opportunity after
after his or her
26 appearance appearance and
and discovery
discovery of ofthe
the facts
facts constituting
constituting the
the ground of of the Justice's or Judge's disqualification, disqualification, and
and in
in any
any event
event before
before the commencement
commencement of of the hearing of any issue 27 of of fact in the action or proceeding before such Justice or Judge.
28
Decision Decision and
and Order Denying the
Order Denying the OAG's
OAG's Statement ofObjection Statement of Objection77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0518-24,People CFOS 18-24, People of
of Guam v.v.Franklin
Franklin Joel
Joel San
SanNicolas
Nicolai
Page of11 Page 5 ofll 1 No No Justice
Justice oror Judge
Judge who
who shall
shall deny his or
deny his or her
her qualification
qualificationshall
shall hear
hear or
or pass
pass upon
upon the
question question of his or her own disqualification, or her own disqualification, but in every case the question case the question of of the the
2 Justice's or Judge's Judge's disqualification
disqualification shall
shall be
be heard and determined
determined by some otherother Judge.
3 The Presiding Presiding Judge,
Judge, or
or next
next senior
senior Judge, if it is the the Presiding
Presiding Judge's
Judge's disqualification
disqualification
that is
is being
being requested,
requested, shall
shallmake
makesuch
suchassignment
assignmentwithin
withinfive
five(5)
(5) days
days after
after receiving
receiving
4 from the the clerk
clerk the
the notice
notice that statement of that the statement of disqualification has has been
been filed.
filed. In
In the
case of
of aa Justice's
Justice's disqualification, the matter shallshall be heard heard by the the Supreme
Supreme CourtCourt
5 without the questioned constituted without questioned Justice.
Justice.
6 If If such
such Judge admits his or her disqualification, disqualification, or
or files
files his
his or
orher
her written
written consent
consent that
that
7 proceeding be the action or proceeding tried before another be tried before another Judge, or fails to file the file the answer within
within
the ten (10) days allowed, (10) days allowed,ororififititshall shallbe
bedetermined
determinedafterafterthe
thehearing
hearingthat
that he or
or she is
8 disqualified, disqualified, the
the action
action or
or proceeding
proceedingshall shall be beheard
heard and
and determined
determined by by another another Judge
of ofthe
the Superior
Superior Court
Court whowho is
is not
not disqualified.
disqualified. Such
Suchother
other Judge
Judge shall
shall be
be assigned
assigned inin the
9 same manner as as the
theJudge
Judgewho
whowas wasdisqualified
disqualified was assigned to hear the the case case initially.
initially.
10 10 See 77 G.C.A.
G.C.A. §§ 6107.
6107.
11 11 II. The Objection Objection is
is procedurally
procedurally sound, being timely sound, being timely filed at at the
the earliest
earliest practicable
practicable
12 12 opportunity opportunity and
and prior
priorto
to any
anyhearing
hearing before
before Judge
Judge Tolentino.
13 13 The Court will
will first
firstaddress
address the
the procedural of whether procedural issue of whether the theOAG's
OAG's Objection was
was timely
timely
14 14 filed. filed. Judge Judge Tolentino
Tolentino initially
initiallyraised
raised the
the issue
issue of
of timeliness, stating "that neither Mr. Moylan nor the 15
Office of 16 Office ofthe the Attorney
AttorneyGeneral
General had
had ever challenged or
everchallenged or objected objected to
to me
me presiding
presiding over
over this
this case
case until
17 the he instant instant Statement Statement of
of Objection and Motion to disqualify." See Answer at 19 (Jul. 31, 2024).
Answer at119
18 Where judge Where a judgeneglects
neglectsororfails
failstotodisclose
disclosehis
hisdisqualification
disqualificationmandated
mandated under
under§ 6105,
6105, §§ 6107
6107
19 19 provides rovides that that "any party to
to such
such action
action or
or proceeding
proceeding who
who has
has appeared
appeared therein
therein may present
present to the
20 20 court and file with the clerk a written statement objecting objecting to the hearing of such matter or any trial of 21 22 any any issue issue of offact
fact or
orlaw
lawininsuch
suchaction
actionororproceeding
proceedingbefore
before such
such Justice
Justice or
or Judge,
Judge, and
and setting forth
22
hefact 23 the factor orfacts
facts constituting
constituting the
the ground of the disqualification ofthe disqualification of ofsuch
such Justice
Justice or Judge.
Judge. Copies
Copies of
of such
such
24 written 24 rittenstatement statementshall
shallforthwith
forthwithbe
beserved
servedby thepresenting
bythe presentingparty
partyon
oneach
eachparty,
party, or
or his
his or
or her attorney,
25 . . . .
who has appeared in in the action or proceeding proceeding and
and on
on the
the Justice
Justice or
or Judge alleged
alleged in
in such
such statement
statement to
26 be disqualified." See 77 G.C.A.
G.C.A. §§ 6107.
6107.
27
28
Decision Decision and
and Order Denying the
Order Denying theOAG's
OAG's Statement ofObjection Statement of Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
MotiontotoDisqualify
Disqualify
CF0518-24, People
Peopleof
of Guamv.v.Franklin
Franklin Joel
Joel San
SanNicolas
Nicolas
Page Page 6 ofll
of 11
1 Importantly, Importantly, §§ 6107
6107 mandates
mandates that "the statement that "the of aa party statement of party objecting objecting to
to the
the Justice or Judge
Justice or Judge
2 onn the 2 the ground her disqualification ground of his or her disqualification shall shall be
be presented at the
presented at the earliest earliest practicable
practicable opportunity
opportunity
3 3 after rfler his his or
orher
herappearance
appearance and and discovery discovery of
ofthe
the facts
facts constituting
constituting the
the ground
groundofofthe
the.]justice's
Justice's or
4 udge'sdisqualgication, ; ]edge's disqualification,and in in and any event
any eventbefore
beforethe
thecommencement
commencement oft re hearing ofthe any issue ofany
hearingof of fact issue of fact
5 6 ininthe the action action or
or proceeding
proceeding before
before such Justice
JusticeororJudge."
Judge." Id.
L (emphasis
(emphasisadded).
added). The
TheGuam
Guam Supreme
Supreme
6 7 Court Court has has confirmed
confirmed that
that statements
statements of
ofobjection
objection shall
shall "be
"be presented
presented atat the
the earliest
earliest practicable
practicable
pportunity after ... discovery 8 opportunity discovery of ofthe
the facts constituting the ground for disqualification." See Van Van Dax
Dox
99 v.. Super Super Cr., Ct., 2008 Guam 7144.
1]44.
10 "A "A palty's
party'sfailure
failure to
to comply
complywith
withany
anyofofthese
theserequirements
requirements constitutes
constitutes sufficient
sufficient grounds to
11 strike or disregard disregard the statement of objection."
statement of objection." See People People v. Johnny,
Johnny, 2006 Guam 10
2006 Guam 1011]11.
ll. Thus,
Thus,
12 13 "with "withrespect respectto
tothe
the statutory
statutoryprovision
provisionrequiring
requiringthat
that disqualification
disqualification be
be urged at the 'earliest practical 13 14 opportunity,'
pportunity,' the the intention
intention is
is 'clear
'clear thatfailure
thatfailuretotocomply
complywith
withthe
theprovision
provisionconstitutes
constitutes a waiver."'
waiver. 5 37
15 See Van Dax Dox v. Super Cr.,
Ct., 2008 Guam 77144
1144 (quoting Caminetti v. Pac. Mat. Ins. Co.
Mut. Ins. Co. of
of Cal., 139
139
16 16 P.2d .2d 930, 930, 933
933 (Cal.
(Cal. 1943)
1943) (emphasis
(emphasis added)).
added)). The
TheGuam
GuamSupreme
SupremeCourt
Courtapplied
appliedthis
this "si1ence-as-
"silence-as-
17 17 waiver rule" in San Union, Union, Inc.
Inc. v. Arnold, "to avoid the possibility possibility of 'lying in
in wake,
wake, raising
raising the
18 19 recusal ecusal issue issue only alter
after learning
learning the court's ruling on the merits.'"
merits."' See San
San Union, Inc. v.
Union, Inc. v. Arnold,
19 20 20 2017 017Guam Guam10 1 (quoting Phillips 101127 Pnillips v.
v. Amoco
Amoco Oil Co., 799 F.2d
F .2d 1464,
1464,1472
1472(l(11 th Cir.
1 th Cir. 1986).
21 However, a finding of of timeliness "should be
timeliness "should be 'construed liberally' to promote justice." See
22 Van 22 Van Dox Daxv.v. Super Super Ct.,
Ct., 2008
2008 Guam 1 45
Guam 7711 45 (quoting Eagle Maint.
Mains. & Supply
Supply Co.
Co. v. Super.
Super. Ct.,
Ct., 16
23 Ca1.Rptr. 745, 747(Dist.Ct.App. Cal.Rptr. 745,747 (Dist.Ct.App. 1961 1961)). A timely
)). A timely statement
statement of objection is is made "prior
"prior to any hearing
24 before the challenged judge judge in matter." Id. at 1]46.
in the matter." 46.
25 26 Here, Judge Tolentino was assigned to this matter only three (3) (3) days before the OAG tiled filed
26 27 their heir Objection.
Objection. See Notice of of Judge Assignment Assignment (Jul. 26, 2024);
2024), Objection (Jul.
(Jul. 29,
29, 2024).
2024). During
27 28 that hatthree three (3)
(3) day timeframe,
timeframe, Judge
Judge Tolentino did
did not preside over any hearings or make mace any decisions
28
Decision Decision and Order Denying and Order Denying the
theOAG's
OAG's Statement
Statementofof Objection
Objection 77G.C.A.
G.C.A. §§ 6107
6107&& Motion
Motion to
to Disqualify
Disqualify
CF0518-24, of Guam v. Franklin CFOS 18-24, People of Franklin Joel Joel San Nicolas
Mcolas
Page 7 of
of 11
\
11 concerning this this case.
case. This left the
This left the OAG
OAGno
no earlier
earlieropportunity
opportunity to
to raise
raise the issue
issue of
of disqualification to
2 the Court. Whileparties Court. While partiesmust
must present
present statements
statements of
of objection "at the
objection "at the earliest practicable opportunity
3 after after his or her appearance and and discovery ofthe
discovery of the facts
facts constituting
constituting the
the ground
ground of
ofthe
the Justice's
Justice's or
or Judge's
must be afforded
4 disqualification", they must afforded that opportunity in the first place. See 7 that opportunity 7 G.C.A.
G.C.A. §§ 6107.
6107.
5 Three hree days is sufficiently within the "earliest "earliest practicable
practicable opportunity"
opportunity" window,
window, especially
especially since
since there
ere no hearings before 6 were the challenged before the challenged judge judge in
in the
the interim. Id. Therefore, the Objection was timely
filed and 7 tiled and procedurally sound.
8 111.
III. The Objection
Objection is
is substantially
substantially defective
defective because:
because:
9 a. Jude JudeTolentino
Tolentinoisisnot
notcompelled
compelledtotodisclose
disclose his
his personal
personal connection to Attorney connection to
10 10 General General Moylan
Moylan under
under the
the clear
clear language of 7 G.C.A.
language of7 G.C.A. §§
§§6105
6105 and
and 6106.
6106.
11 11 The only The only circumstance in §§ 6105 circumstance in 6105 requiring requiring disqualification (absent aa waiver disqualification (absent waiver following following
12 12 disclosure)
disclosure) involving involving the
the judge's
judge's spouse
spouse is
is§§ 6105(b)(5) when the
6105(b)(5)when the spouse is any spouse is anyof:
of: (A)
(A) aa party
party to
to the
the
13 13 proceeding, officer, director, or trustee roceeding, or an officer, trusteeof of aaparty;
party,(B)
(B) acting
acting as
as aalawyer
lawyer in
in the
theproceeding;
proceeding,(C)
(C)
14 14 own by known by the
the Judge
Judge to have
have an
an interest that could
interest that could be substantially affected by substantially affected by the the outcome
outcome of the
the
15 15 proceeding, roceeding; or
or (D)
(D)isisto
tothe
theJudge's
Judge's knowledge likely
likelyto
to be
be aa material
material witness
witness in
in the proceeding.
proceeding. See
16 16 17 17 77 G.c.A.
G.C.A. §§ 6105(b)(5).
6105(b)(5).
18 18 Judge Tolentino's spouse Judge Tolentino's spouse is is not
not aa party to the proceeding, or an officer, the proceeding, officer, director, or or trustee of
trustee of
19 aaparty. 19 party. She Sheisisnot
notacting
actingas
as aa lawyer
lawyerin
in the
the proceeding,
proceeding, nor
nor is she known by Judge Judge Tolentino
Tolentino to have
20 interest that
20 an interest thatcould couldbe
besubstantially
substantiallyaffected
affectedby
by the outcomeof
theoutcome of the
the proceeding.
proceeding. She
She is
is not,
not, to
to Judge
Judge
21 olentino'sknowledge,
2; Tolentino's knowledge,likely likelytotobebea amaterial materialwitness
witness in
in the
the proceeding.
proceeding. Therefore,
Therefore, none
none of
ofthese
these
22 circumstances exist 23 circumstances exist to to require
require that Tolentino invoke that Judge Tolentino invoke the the mandatory disclosure requirements requirements of
of
23 24 24 §§ 6106.
6106.
25 The circumstances of the circumstances of the OAG's OAG's objection
objection differ
differnotably
notablyfrom
fromthe
thecircumstances
circumstances inPeople
People v.
v.
26 26 Santos, antos, where where the
the Guam
Guam Supreme Court found
Supreme Court found the
the provisions
provisionsof
of §§ 6105(b)
6105(b) required
required a
a judge's
judge's
27 2 ; disqualification (absent a waiver waiver following
followingdisclosure)
disclosure)when
whenthat
that judge
judgewas
was related
related within
within the
the third
third
28 2 degree to to the
the Chief
Chief Prosecutor
Prosecutor of
of the
the OAG. See People
OAG. See People v.
v. Santos,
Santos, 2018
2018 Guam 12 ,r'I 8.
Guam 12 8. The
The Guam
Guam
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement
Statementof
ofObjection
Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
Motion to
toDisqualify
Disqualify
CF0518-24, CFOS Peopleof
People ofGuam
Guam v. Franklin Joel
Joel San Nicolas
San Nicolas
Page Page 8 ofll
of 11
1I Supreme SupremeCourt Courtconcluded
concludedthat
that the
the Chief
Chief Prosecutor
Prosecutor was acting as lawyer in the as a lawyer the proceeding, proceeding, even
even if
if
2 they hey did not not personally participate in the case, due to their supervisory responsibility over the personally participate in the case, due to their supervisory responsibility over the 3 perfonnance erformance of the attorney in in the proceeding. Id. at ii,r 13.
the proceeding. 13. This Thissame
samelogic
logiccannot
cannot be
be extended
extended to
4 Attorney ttomey General General Moylan,
Moylan, despite
despite any
any supervisory
supervisory involvement
involvement he
he may
may have
have in
in this
this case,
case, because
because
5 5
6 Attorney ttomey General General Moylan
Moylan is
is not
not related
related within
within the third degree to third degree to Judge
JudgeTolentino.
Tolentino. Therefore, 7
6 7 7 G.C.A.
G.C.A. §§ 6105(b)
6105(b) does not require Judge Judge Tolentino's
To1entin0'sdisqualification disqualification here.
here.
8 b. Applying b. Applying the
the"appearance
"appearance of
ofimpropriety"
impropriety" standard,
standard, Judge
Judge Tolentino
Tolentino was
was not
not
9 required to disclose under 77G.C.A.
disclose under G.C.A. §6105(a).
§ 6105(a).
10 10 Section 6105(a) requires that that "any
"any judge shall
shall disqualify himself
himself or
or herself
herself in
in any
any proceeding
11 11 in ·n which which his his or
or her
her impartiality
impartiality might
might reasonably questioned". See 7 reasonably be questioned". 7 G.C.A.
G.C.A. §§ 6105(a).
6l05(a). When
When
12 considering 12 disqualification under considering disqualification under §§ 6105(a), 6105(a), "what
"what matters
matters is
is not
not 'actual
'actual bias,'
bias,' but
but 'the
'the appearance
appearance
13 13 of of bias."' See See Van
Van Dox
Dax v.
v. Super Ct., 2008
Super Ct., 2008 Guam ,r 32 (citing Guam 77 1132 (citing Dizon Dizon v.
v. Super. Ct. (People),
Super. Ct. (People), 1998 1998
14 Guam 33 ,r1110 14 n.3). The 10 n.3). The appearance
appearanceof
of bias
bias is
is judged
judged from the standard
standardofa
of a"reasonable
"reasonable person"
person" who
15 15 knows all the the facts,
facts, and
and understands the "contents of understands the of the the jurisdictions,
jurisdictions, parties,
parties, and
and controversies
controversies
16 16 involved,"
·nvolved," including including such
such "realities
"realities of
ofthe
the Guam
Guam judicial system"
system" as
as the relatively small
small number of
number of
17 17 lawyers in in the Guam bar
bar and
and"the
"the nature
natureof
ofGuam
Guamfamilies." ,r 32 ((citation omitted).
families." Id. 1132 omitted).
18 18 The Michigan Michigan Supreme
Supreme Court held that "the appearance that "the appearanceof
of impropriety"
ilnpropriety" standard
standard applies only
19 19 where there is no no clear rule or canon pertaining to thesubject subject matter.
matter. See Adair v. State of of Michigan
Michigan
20 Dept.
ept. of ofEducation, Education, 474
474 Mich.
Mich. 1027,
1027, 1039
1039 (Jan. 31, 2006).
(Jan. 31, 2006). The
The Court
Court reasoned "specific
"specific court
court rules
rules
21 or canons canons that that pertain to aa subject subject and
and that
that delineate
delineate what
what is
is permitted
permitted and
and prohibited
prohibited judicial
conduct. would be of 22 conduct... oflittle little consequence
consequence ififthey
they could
could always
always be
be countermanded by the vagaries of countermanded by
an 'appearance 23 an 'appearance of of impropriety'
impropriety' standard".
standard". Id. at 1039.
24 In this In this instant
instantcase,
case,the
thenon-disclosure
non-disclosure the
ofofthe relationship
relationship complained complained oby the
ofby theOAG
OAG is covered
covered
25 by §§ 6105(5), 6105(5), which which specifically
specificallylays
laysout
outwhen
when aa judge's
judge'srelationship
relationship to
to aa lawyer
lawyer in
in the
the proceeding
proceeding
26 warrants thatjudge's arrants that judge's disqualification.
disqualification. Importantly, Importantly, by
bylisting
listingthe
theprohibited
prohibited relationships
relationships between
between a
27 lawyer awyer and and the judge, §
the judge, § 6105(5)
6105(5) also
also states
states which
which relationships arepermitted.
relationships are permitted. Section Section 6105(5)
6105(5) lists
lists
28 several prohibited relationships, and being relationships, and being the the ex-partner
ex-partnerof
of the
thejudge's
judge's spouse is not one of them.
spouse is them.
Decision Decision and
and Order Denying the
Order Denying theOAG's
OAG's Statement ofObjection Statement of Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
MotiontotoDisqualify
Disqualify
CF0518-24, People
Peopleof
of Guamv.v.Franklin
Franklin Joel
Joel San
SanNicolas
Mcolas
Page Page 9 of11 .»
1 Because ecause §§ 6105(5)
6105(5) delineates
delineateswhat
whatisis and
andisn't
isn't aa prohibited
prohibited relationship,
relationship, the
the OAG
OAGcannot
cannot negate
negate that
that
2 rule 2 le by invoking invokingthe
the "appearance of impropriety"
"appearance of impropriety" standard.
standard.
3 c.
c. Under
Under an
an "objectively
"objectively reasonable
reasonable person"
person" standard,
standard, Judge
Judge Tolentino
Tolentino was not
not
4 required required to
to disqualify
disqualifyhimself
himselfin
inthis
this case.
case.
5 Even Even ifif§§6105(a)
6105(a)was
waspermitted
permitted totobypass
bypass the
the clear
clearrule
rulepertaining
pertaining to
to this
this challenged
challenged
6 relationship, elationship, no
no objectively
objectivelyreasonable
reasonable person
person would
would question JudgeTolentino's question Judge Tolentino's impartiality here.
here.
7 The American Bar Association Association ("ABA")
("ABA") acknowledged
acknowledgedthat
that"judges
"judgesare
areordinarily
ordinarilyin
inthe
the best
best
8 position ositiontotoassess
assess whether
whether their impartiality impartiality might
might reasonably
reasonably be
be questioned
questioned when lawyers or or parties
parties
9 with ithwhom
whom they
they have relationships
relationships...
... appear before
before them."
them." See ABA
ABAFormal
FormalOp.
Op. 488
488 (Sep. 5, 2019).
2019).
10 10 The heABA
ABAalso
alsonotes
notesthat
that"in
"insmaller
smallercommunities
communitiesand
andrelatively
relativelysparsely-populated sparsely-populated districts, districts, judges
ll 11mayayhave havesocial
socialand
andpersonal
personalcontacts
contactswith
withlawyers
lawyersand
andparties
parties that
that are
are unavoidable.
unavoidable. In
In that
that
12 circumstance, 12 too strict circumstance, too strict a disqualwcation disqualification standard would would be
be impractical
impractical to
to enforce
enforce and
and would
would
13 13 potentially disrupt the administration of ofjustice." Id. (emphasis added). The ABA (emphasis added). ABA also also recognizes
recognizes
14 that hat over time relationships change"or relationships change "or may may have
have ended
endedsufficiently
sufficiently far
far in
in the past
past that
that itit is not a
15 current concern 15 concernwhen whenviewed
viewedobjectively."
objectively." Id.
L "Finally, judges must
"Finally,judges must avoid avoid disqualifying
disqualifyingthemselves
themselves
16 too quicldy 16 quickly or or too
too often
often lest
lest litigants
litigantsbe
beencouraged
encouraged to use
use disqualification
disqualification motions
motions as
as aa means of
means of
17 judge-shopping, or other judges 17 ·udge-shopping, judges in the the same
same court
court ...
... become overburdened."
overburdened." Id.
18 18 Adopting the Adopting the recommendations of the recommendations of the ABA ABA in
in its
its Formal
Formal Opinion
Opinion 488,
488, based on the
the objective
objective
19 reasonable 19 person standard, easonable person standard,and andconsidering
consideringthe
theAnswer
Answerfiled
tiled by
by Judge
Judge Tolentino
Tolentino and
and the judicial
20 community and context community and context in in which the
the disqualification
disqualification is sought, the Court sought, the makes the Court makes the following
21 findings:
findings:
22 • The circumstances previously requiring circumstances previously requiring Judge JudgeTolentino
Tolentino to
to disqualify
disqualify himself have
23 changed and, by changed and, by Attorney General General Moylan's
Moylan's own
ownadmission
admission during
during the
the meeting
meeting
24 between himself, his staff, Judge Tolentino, and the Judge Tolentino, the court courtstaff,
staff, any
anyconflict
conflict relating to
25 the familial association association between Judge Judge Tolentino
Tolentino and
andAttorney
Attorney General
General Moylan
Moylan "no
26 longer existed." Answer at ,r existed." See Answer 1[7 (Jul.
(Jul. 31,
31, 2024).
2024). Therefore, Judge
Judge Tolentino is not
27 required to disqualify required to disqualify himself himself under§
under §6105(a).
6l05(a).
28
Decision Decision and Order Denying and Order Denying the
theOAG's
OAG's Statement
Statementof
of Objection
Objection 77G.C.A.
G.C.A. §§ 6107
6107&& Motion
Motion to
to Disqualify
Disqualify
CF0518-24, CFOS People of Guam v.
v. Franklin
Franklin Joel San Mcolas
San Nicolas
Page 10 o f 11
\
1 • The relationship between between Attorney
Attorney General
General Moylan
Moylan and
and Mrs.
Mrs. Tolentino ended on June
2 13, 1997. Id. at ,r 1]14.
14. Therefore,
Therefore, the
the relationship
relationship has
has ended sufficiently far in the past
3 that it is not a current current concern
concern when
when viewed
viewed objectively.
objectively.
4 • Attorney General Moylan and Mrs. Tolentino's Tolentino's children
children are now grown adults living 5 on their own, which poses poses another
another significant
significant change
change in
in relationships.
relationships. Id.
ac at ,r,r 7,
at W 7, 14.
14.
6 • Guam's small In Guam's small legal
legal community
community and
and with
with aa trial
trial court
court bench
bench consisting of
of only four
7 (4) dedicated criminal court court dockets, requiring
requiring Judge
Judge Tolentino, who is one one of
of the four
8 (4) judges assigned (4) judges assigned to
to the
the criminal
criminal docket,
docket, to
to disqualify
disqualify himself
himselfpursuant
pursuant to
to §§ 6105(a)
6105(a)
9 from all cases cases in
in which
which Attorney
Attorney General
General Moylan
Moylan represents
represents the People of Guam Guam
10 10 would: (a) be impractical to enforce, (b) negatively impact the efficient administration 11 11 of of justice, and (c) lead to judge-shopping and/or overburden the judges in the same 12 12 court. 13 13 CONCLUSION 14 For the reasons stated above, the Court Court DENIES the OAG's
OAG's Objection.
Objection. Judge
Judge Tolentino
Tolentino is
15 15 not required to disclose his personal relationship with Attorney General Moylan, nor is he required 16 to disqualify 16 to disqualify himself himself under
under§ 6105.
6105.
17
18 this August IT IS SO ORDERED this August 261 2 6 2024
19
20
21
22 HONORABLE ALBERTO C. c. LAMORENA, III Presiding Judge, Superior Court of Guam 23
24
25
26
27
28
Decision and Order Decision and Order Denying Denying the
theOAG's
OAG's Statement
Statementof of Objection
Objection77G.C.A.
G.C.A. §§ 6107
6107&& Motion
Motion to
to Disqualify
Disqualify
CF0518-24, CFOS 18-24, People
People of
ofGz4am
Guam v.v.Franklin
Franklin Joel San
San Nicolas
Page 11 Page 11 of 11