People v. Sanres

Opinion

FILED i 1 CLERK O? CLERK OF COURT 2 2921, Aus 202\AUG 2929PH PH5:S:11II 3 SUPEIOQ SUPERIORCOURT COURT 4 oF Guam OFGUAM~ 5

6 6 . IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM 7 PEOPLE OF OF GUAM, GUAM, ) CRIMINAL CRIMINAL CASE CASE NO. CF0461-24 ) 8 ) vs. ) DECISION AND ORDER DENYING DENYING 9 ) THE OAG'S STATEMENT STATEMENT OF OF 10 GREG SANRES, ) OBJECTION OBJECTION 77 GCA GCA §§6107 6107 DOB: DOB: 01/18/1990 01/18/1990 ) AND AND MOTION TO DISQUALIFY DISQUALIFY 11 Defendant. ) ) 12 12 __________ )) 13 13 INTRODUCTION 14

15 15 This matter is before matter is HonorableMaria the Honorable before the Maria T. T. Cenzon CeNzon on on the the Office Office of of the the Attorney Attorney

16 16 General's (the "Office General's (the the Attorney ofthe "Office of Attorney General" General" or the "OAG") or the "OAG") Statement Statement of of Objection Objection 77 GCA GCA §§

17 17 6107 and Motion 6107 and Motion to to Disqualify Disqualify (the (the "Objection") "Objection") filed on on July July 23, 23, 2024, by Acting 2024, by Acting Chief Chief 18 18 Prosecutor Gloria Gloria Rudolph Rudolph(hereinafter (hereinafter"Chief "Chief Rudolph"). Rudolph"). The OAG OAG objects objects to to Judge Alberto E. Judge Alberto 19 19 Tolentino's (hereinafter (hereinafter "Judge "Judge Tolentino") competency competency to to preside preside over over the the above-captioned above-captioned 20

21 matter under77GCA matter under GCA §§ 6105 6105 and requestshis and requests hisdisqualification disqualification pursuant pursuant toto77GCA GCA §§ 6107. 6107.

22 Having considered considered the Objection, the the Answer, the the Response, Response, as well as as the the applicable applicable 23 statutes andcase statutes and law and caselaw andthe therelevant relevantportions portionsof of the the record, record, this this Court Court issues issues the the following following 24 Decision and Order Decision and OrderDENYING DENYING the the Office Officeofofthe theAttorney AttorneyGeneral's General'srequest requestto to disqualify disqualify Judge Judge 25 26 Tolentino and reassign Tolentino and reassign this case. 26

People People v. v. Greg GregSanres, Sanres, Criminal Case Case No. CF0461-24 CF0461-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of 7 GCA Objection 7 6107 and GCA §§ 6107 Motion to and Motion to Disqualify Disqualify Page 1 of23 of23 1 PROCEDURAL AND FACTUAL FACTUAL BACKGROUND 2 A. The The Brief BriefProcedural Procedural History History of ofthis this Case Caseand andObjection Objection to to Judge Judge Tolentino Tolentino 3 Assignment. Assignment.

4 On July 5, 2024, Defendant Greg Sanres (the On (the "Defendant") was charged via Magistrate 5 (As aa 2nd Complaint with Theft by Receiving (As 2nd Degree Felony) Felony) and Criminal Mischief and Criminal (As a 3rd Mischief (As 3rd 6 Degree Degree Felony) Felony)and and appeared appeared before Magistrate Magistrate Judge Judge Benjamin C. Sison, Jr. Jr. for for a Magistrate's Magistrate's 7 8 Hearing. On Hearing. On July July 10, 2024, the 10, 2024, the case casewas assigned,pursuant wasassigned, GCA§§4103, pursuantoto7 7GCA to Judge 4103, to JudgeTolentino. Tolentino. 8

9 9 Ntc. of ofJudge Judge Assignment Assignment (Jul. (Jul. 10, 10, 2024). 2024). On July July 23, 2024, the 23, 2024, theOAG OAG filed its Objection. On

10 July 11, 2024, July 11, 2024,the theGrand GrandJury Juryreturned returneda a TrueBill True theDefendant indictingthe Billindicting Defendantof ofthe thecharges chargesof ofTheft Theft 111 by Receiving Receiving (As 2nd Degree (As aa2"d Degree Felony) Felony) and and Criminal Criminal Mischief Mischief (As 3rd Degree (As aa3rd Degree Felony). Felony). 12 12 Indictment (Jul. (Jul. 11, 2024). On 11, 2024). On July 29, 29, 2024, 2024,Judge Judge Tolentino Tolentino filed filed his Answer to to Statement Statement 13

14 14 of Objection. Ans. Arls. To Stmt. Stmt. of ofObjection Objection (Jul. (Jul. 29, 29, 2024) 2024) (the "Answer"). "Answer").On OnJuly July30, 30, 2024, 2024, this

15 15 Court was designated as the designated as the Recusal RecusalJudge Judgetotorule ruleon onthe the Objection. Objection.Ntc. Ntc. of of Assignment Assignment of 16 16 Recusal Judge 2024). On August Judge (July 30, 2024). August 12, 12, 2024, the thePeople Peoplefiled filed aa "People's "People's Response Response· to 17 17 Judge Judge Tolentino's Answerto Tolentino's Answer to Statement StatementofofObjection Objection7 7GCA GCA § § 6107 6107 and and Motion Motion to to 18 19 Disqualify" Disqualify" (the "Response"). "Response"). Response Response (Aug. (Aug. 12, 12, 2024). 2024). Defendant Defendant has not joined in the has not the 19

20 20 People's People's Objection Objectionnor nor otherwise otherwise sought sought to disqualify Judge Tolentino. Judge Tolentino.

21 1. 1. The TheBasis Basis of of OAG's OAG's Objection. Objection. 22 The gravamen gravamen of the the OAG's OAG's Objection Objection isisthat that Judge Judge Tolentino Tolentino is is disqualified disqualified from 23 presiding over all cases involving involving the the Office Officeofofthe theAttorney AttorneyGeneral Generalbased basedupon upon the the mandate mandate of 24 25 7 GCA §6105(a) 7 GCA § 6105(a)requiring requiring the judge to the judge to "disqualify "disqualify himself himself ... ... in in any any proceeding in in which which his ... 25

26 impartiality might reasonably be questioned reasonably be ...." Objection questioned.... Objection at p. 22 (citing at p. (citing 77 GCA GCA § § 6105(a)). 6105(a)). The The

27 27 OAG OAG alleges alleges that that "knowing "knowing all allthe thefacts factsand andunderstanding understanding the the context context involving involving Judge Judge 28 28 Tolentino's history history of of disqualifying disqualifying himself himself where where the AG AG was was involved, involved, ititisisclear clearthat that Judge Judge

People People v. v. Greg Greg Sanres, Sanres, Criminal Criminal Case Case No. CF0461-24 Decision and Decision and Order Denying the Order Denying the OAG's OAG's Statement of Objection Statement of § 6107 GCA § Objection 77 GCA 6107 and and Motion Motion to to Disqualify Disqualify Page Page 2 of23 1 is aa disqualified Tolentino is disqualified judge judge in in any any case case where wherethe theAG AGMoylan Moylanisisinvolved." involved."Obj Objection section at p. 2 5. Other than Judge Tolentino's Tolentino's past past sue sua sponge sponte recusals basedupon recusals based uponAG AGMoylan's Moylan's biological biological 3 relationship to to his stepchildren -- the last of of which was was nearly two years ago -. the OAG alleges 4 no specific facts, facts, asserted asserted by by someone someone with personal knowledge of such knowledge of such facts, which purportedly 5

66 of Section provisions of invoke the provisions 6105. 1 Instead, Section 6105.1 Instead, the Objection only iterates the finding in People

77 v. Taitingfong, v. Superior Court Criminal Taitingfong et al., Superior Criminal Case Case No. No. CF0024-24 CF0024-24 (June (June4,4, 2024)(Iria1te, 2024)(Iriarte, J.) that 8 Tolentino was Judge Tolentino was disqualified disqualifiedin inthat that case case based based upon upon factors factors considered consideredin in that that particular particular case. 9 Moreover, the "Verification" executed by Chief Chief Prosecutor Prosecutor Rudolph purporting to be "true and 10

11 correct" also correct" also disavows disavows the accuracy accuracy of "factual matters matters averred averred on information information and belief." belief."

12 12 Objection at Objection at p. 8. 13 identifies two Nevertheless, the Objection identifies two purportedly purportedly disqualifying disqualifying factors, factors, the first of of 14 14 places the which places blame squarely the blame squarely upon upon the Superior Court the Superior Court of of Guam Guam and and the second upon a the second 15

"familial milia l relationship" ela tionship" between between Judge Judge Tolentino olentino and Attorney nd Attor General ney Gener Douglass Moyla a l Dougla Moylann 16

17 (hereinafter "Attorney General Moylan," "Mr. Moylan" or "Moylan") which purportedly requires

18 Judge Tolentino to recuse himself, specifically: 19 Superior Court (1) The Superior Court should prevented Judge Tolentino should have prevented Tolentino from 20 handling ndling matters tter s involving involving the the Attorney Gener a l of Attor ney General of Guam, Gua m, as a s he ha had previously disqualified previously disqualified himself himself sue sponte, from sua sponge, all matters from all matters involving 21 Douglas Douglas B. B. Moylan Moylan pursuant to 7 pursuant to 7 GCA GCA §§ 6105 6105 and and 6106, 6106; and and 22 (2) The familial familial relationship relationship between Judge TTolentino and between Judge and Attorney Attorney 23 General Moylan which constituted the grounds for Judge Judge Tolentino's sue sua sponte disqualifications and have not changed. [sic] sponge 24

25 Objection at Objection at p. 2 (emphasis in original).

27 11 The The Court finds it significant that the the allegations allegations purportedly purportedlygiving giving rise rise to to a conflict conflict are only advanced advanced by by Actin Acting 28 ChiefProsecutor Chief Prosecutor Rudolph Rudolph and thatno and that noDeclaration Declaration made madeunder underpenalty penaltyof ofperjury perjurybybyAttorney AttorneyGeneral GeneralMoylan-wh Moylan who is the only individual other than Judge other than JudgeTolentino Tolentinowho who would would have firsthand firsthandknowledge knowledge ofof any any ongoing ongoing "close "close personal persona relationship" between between himself himselfand and Judge Tolentino - was Judge Tolentino was submitted submitted to provide a factual basis for factual basis for the the disqualification disqualification.

People People v. v. Greg Greg Sanres, Sanres, Criminal Criminal Case Case No. CF0461-24 Decision Decision and Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and andMotion Motion to to Disqualify Disqualify Page 3 of23 1 Citing Citing to to the the Guam Guam Supreme case of Supreme Court case v. Superior San Agustin v. ofSan of Guam, 2 the Superior Court ofGuam,2 2 OAG OAG posits, Superior Court "the Superior posits, "the must align its Court must process for assigning its process to the assigning judges to record of a the record 3 prospective judge's judge's history history of ofdisqualification." at pp. Objectionat disqualification." Objection 6-7. In pp. 6-7. short, the OAG In short, argues OAG argues 4 that, casesto assigning cases that, in assigning judicial officers, tojudicial Superior Court the Superior officers, the ofGuam Court of should disregard multiple Guam should 5

6 6 provisions of Guam Supreme the Guam ofthe administrative rule, including Supreme Court's administrative assignment" including the "case assignment"

7 7 rule rule and and the the rule rule governing governing the the disqualification disqualification of of aa judicial officer3 merely judicial ofiicer3 Judge because Judge merelybecause 8 Tolentino had routinely routinely recused refused himself in cases involving involving Mr. through October Moylanthrough Mr. Moylan 2022 October 2022 9 and before the latter and before latter assumed his elected assumed his elected office office as as Attorney in 2023. General in Attorney General further 2023. By further 10

111 implication, the OAG implication, the OAG asks asks this this Court Court to to find find that that the the Superior should have ignored the Court should Superior Court

12 12 substantive andprocedural substantive and proceduraldisqualification disqualificationprovisions provisionsof of 77 GCA GCA §§ §§6105 6105 and and 6106 6106 and and iilrther further

13 13 omit Judge the OAG involve the whichinvolve Judge Tolentino from the random assignmentof random assignment of cases caseswhich OAG (including 14 criminal cases) becausethe cases) because thejudge judgepreviously previouslyrecused reused himself himself from presiding over from presiding cases in which over cases 15 15 16 Mr. Moylan Moylan represented defendant on the grounds represented aa defendant thatMr. grounds that Mr. Moylan Moylan "is "is the father of the father [his] of [his] 16

17 stepchildren." Obj action at p. 2. Objection

18 2. Judge Judge Tolentin0's Tolentino's Answer. 19 On July July 29, 29,2024, 2024,Judge JudgeTolentino Tolentinofiled filedhis hisAnswer Answer to of Objection Statementof to Statement ("Answer"). Obj section ("Answer"). 20 His response response is lengthy lengthy and and detailed, and the the Court finds the following responses, made followingresponses, under made under 21 22 penalty of ofperjury, perjury, particularly Court's recusal this Court's particularly relevant to this determination: recusal determination: 22

24 24 2 inaction and an 25 2 2024 Guam 2024 Guam 2. 2. Curiously, Curiously, the the first first "factor" "factor" has to do with Judge Tolentino's has less to actions or purported inaction Tolentino's actions seems to be seems to be more more of of an actionto an action to compel compelthetheSuperior SuperiorCourt Courtto to "do" act -- that is, omit Judge Tolentino from "do" an act from theth 26 26 case assignment assignment procedures proceduresof ofthe theadministrative administrative rule rule based basedupon upon aadisqualifying disqualifying factor. This This would would seem seem to be more appropriate under a writ writ proceeding, proceeding, possibly possibly before before the the Guam Guam Supreme Supreme Court, Court, ironically ironically akin akin to to the the writ writ proceeding proceedin described in described in detail detail by by the the Guam Supreme Court Guam Supreme inSan Court in Agustin, the San Agustin, the OAG's OAG's principal principal case. case. See, San Agustin See, San Agustin at at W,r,r 35- 35 27 27 41. 28 3 3 Administrative Rule No. 24-001 (March 6, 2024). Section HI of AR24-001 establishes the procedLu°e for Adniinistrative Rule No. 24-001 (March 6, 2024). Section III of AR24-001 establishes the procedure for the th assignment assignment of cases. Section IV.A. cases. Section IV.A. addresses the assignment addresses the assignment of of cases casesupon uponthe the disqualification disqualification of a judge judge and and theth assignment of the recusal recusal judge. judge.

People People v. v. Greg Greg Sarges, Sanres, Criminal Criminal Case Case No. CF0461-24 Decision and Decision Order Denying and Order die OAG's Denying the OAG's Statement of Objection Statement of Objection 77 GCA GCA § § 6107 6107 and and Motion Motion to to Disqualify Disqualify Page 23 Page 4 of23 1 ,r 6. 1] 6. That That at at Mr. Mr. Moylan's Moylan's request, request, aa meeting meeting between between him him and and the the undersigned, the undersigned's chamber staff, the Administrator undersigned, the undersigned's chamber staff, the Administrator of of the 2 Courts, and Mr. Courts, and Mr. Moylan's Moylan's transition transition chairperson, chairperson, Mr.Mr. Wilfred Wilfred Aflague, 3 occurred in December 2022, 2022;

4 ,r 7. That 117. That at atthis thismeeting, meeting, Mr. Moylan Moylanassured assured me and and the other members in attendance attendance that thatheheperceived perceivedno no conflict conflict in his election as the the Attorney 5 General and the theprosecution prosecution of of criminal cases before the cases before the undersigned. It was 6 agreed that the circumstances underlying my circumstances underlying my recusal recusal in matters that Mr. matters that Moylan Moylan waswas aa lawyer lawyer no no longer longer existed, existed, to to wit: wit:that thatduring during mymy term term as as the 7 Magistrate judge I had hadroutinely routinelyrecused reused myself myselffrom from all all matters matters where Mr. Moylan Moylan waswas thethe attorney attorney of ofaa party party before beforememeon onthe the basis basis that that he was the 8 father father of mymy minor minor step-children step-children andand that that the the minor minor step-children step-children were 9 members members of and resided in the household household maintained maintainedby bymeme and andmy mywife wife and that that as asofof even even date, date, both step-children have now reached majority and 10 adulthood and and have have been been residing residing at their own own residences residences inin Guam Guam and in 11 1 the U.S. Mainland, Mainland;

12 12 ,r 8. That 1[8. That Mr. Mr. Moylan Moylannever nevermade madean anappearance appearance as a lawyer in in this case, case; 13 ,r 9. That 119. That neither neitherMr. Mr. Moylan Moylan nor nor the the Office Office of ofthe the Attorney Attorney General General hadhad 14 ever ever challenged challenged or or objected objected to to me me presiding presiding over overthis thiscase case until until the the instant instant Statement Statement of of Objection Objection and andMotion Motion toto Disqualify Disqualify filed herein, herein; 15 15

16 ,r 12. 'll 12. That That additionally additionally movant has has not not explained explained why why or how the fact fact that that Mr. Moylan Moylan isis the thebiological biologicalfather fatherofofthe theundersigned's undersigned'sstepchildren stepchildren 17 17 requires disqualification disqualification of ofthe the undersigned, undersigned;

18 ,r 14. 11 14.That Thatmy mywife wife Doris Doris L.G. L.G. Tolentino and and Attorney General General Moylan were divorced divorced ononJune June 13, 13, 1997, and that 1997, and thatthere therewere were two two minor children children at 19 the time ofof the the dissolution dissolution of of marriage, marriage, to wit: wit: Brandon Brandon (born (born 1990) 1990) and and 20 Angela (bam Angela (born 1992); 1992);

21 ,r 15. 1] 15. That That my my wife and and I have have been been together together since since 2001 2001 and that that we we were married married civilly in in 2005 2005 and and eventually eventually in in the the Roman Roman Catholic Catholic Church Church in 22 December December 2023 2023;, 23 ,r 17. 11 17.That Thatsince sincemy mywife wife and andII have have been been together together I have never observed 24 Mr. Moylan Moylan and and my wife wife involved involvedininanyanysense sense in in co-parenting co-parenting the children of of their their marriage marriage asas the the children children have have been been raised raised and and provided provided with 25 protection and and care care to ensure ensure their healthy healthy development development intointo adulthood, adulthood, 26 primarily primarily by by my my wife wifeand andme,me,and and that that they are are in in fact fact adults adults able to conduct and make maketheir theirown owndecisions decisionsininlife; life, * 27

28 ,r 18. ii 18. That That based based upon upon the foregoing foregoing averments, averments, the fact fact that that Attorney Attorney General Moylan is General Moylan is the biological biological father father of ofthe theundersigned's undersigned's step-children step-children

People People v. Greg Greg Sarges, Sanres, Criminal Case Case No. CF0461-24 CF0461-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of 7 GCA Objection 7 6107 and GCA §§ 6107 Motion to and Motion to Disqualify Disqualify Page 5 of of23 1 provides provides no no basis for disqualification basis for under77 GCA disqualification under GCA §§ 6105(b) 6105(b) or or that that the undersigned's "impartiality might reasonably undersigned's questioned" as reasonably be questioned" required as required 2 under subsection(a); under subsection (a), 3 ,i 19. 'H 19.That matters is (a), what matters 6105(a), subsection 6105 "[u]nder subsection That"[u]nder "actual bias" not "actual is not bias" 4 but but "the appearance appearance of of bias." Van Van Dox ,i 32 (citing Dizon at 1132 Dox at Dizon v. Ct. Super. Cr. v. Super. (People), 1998 Guam33,i1[10 1998 guam appearanceof Theappearance 3).The 10n.n.3). judged from biasisisjudged ofbias from 5 the the standard standard of of a "reasonable person" who "reasonable person" knows all the who knows the facts, and facts, and 6 understands understands the the"contexts the jurisdictions, "contexts of the parties, and jurisdictions, parties, controversies and controversies involved," including such "realities of including such the Guam ofthe system" as Guam judicial system" the as the 7 relatively relativelysmall numberof smallnumber Guambar theGuam lawyers ininthe oflawyers nature of Guam "the nature and "the bar and 8 families." (citation omitted). families." Id. (citation omitted).

9 'll 30....The ,i 30. .. The recusal recusal judge Taitingfong,] did judge [in People v. Taitingfong,] did not carefully not carefully examine or consider the the realities realities that thatmymy wife Mr. Moylan and Mr. wife and Moylan have been 10 divorced for closeclose to to twenty-seven twenty-seven years their children of their that the children and that years and 111 marriage marriage are are adults adults living living on their ownown and well over and well theage overthe majority ageofofMaj rarity and that that nono reasonable reasonable person who knows all all the facts and the facts understands the and understands 12 12 contexts of the jurisdiction, parties and controversies involved ofthe involved inin the Guam the Guam judicial judicial system system would conclude conclude that that there there exists exists an an appearance appearance of bias bias 13 13 requiring my disqualification disqualification in this matter. .... in this 14 W6 -. 9, 12, Answer at ,i,i 12, 14, 14, 15, 15, 17 17 .-. 19, 19, 30. 30. 15

3. The ThePeople's People'sResponse. Response. 16 16

17 On August 12, 2024,the 12, 2024, theOAG OAG filed filed an unsolicited unsolicitedPeople 's Response People's 's Judge Tolentino 's Response to Judge

18 18 Answer to Statement Answer to Statementof ofObjection Objection77GCA GCA§§6107 andMotion 6107 and Motion to to Disqualify, Disqualyy, arguing that (1) the 19 OAG's OAG'sObjection Objectionisistimely timelybecause becauseititwas wasfiled filedand andserved uponJudge servedupon Tolentinoon Judge Tolentino July 23, onJuly 2024 23, 2024 20 - thirteen (13)days thirteen(13) afterthe daysafter judgewas thejudge assignedtotopreside wasassigned overthis presideover matteron thismatter July 10, onJuly 2024; and 10, 2024, and 21 22 (2) that (2) that Judge Tolentino is Judge Tolentino is biased Se pursuant per se biased per pursuantotoCalifornia CaliforniaCode Codeof ofCivil Civil Procedure Procedure CCP CCP § 22

23 170.1, which "specifically 170.1, which "specifically states states that judges marriedto judges married theex-wives tothe appearing before ex-wives of lawyers appearing

24 24 them are are disqualifiable." Response Response at at p. 3. The The Response any of the address or contest any not address does not Response does 25 averments in Judge averments in Judge Tolentino's Tolentino's Answer, Answer, but simply that "given repeats that simply repeats the significant "given the and significant and 26 26 continuing relationshiphe continuing relationship hehas haswith withAG Moylan's ex-wife AGMoylan's children" he is disqualified from and children" ex-wife and 27

28 all cases involving involving Attorney General General Moylan Moylan and, therefore, the and, therefore, Office of the Office of the Attorney General.

People People v. Greg Greg Sarges, Sanres, Criminal Case No. CF0461-24 Case No. CF0461-24 Decision and Decision Order Denying and Order theOAG's Denying the OAG's Statement of Objection Statement of Objection 7 GCA §§ 6107 7 GCA 6107 and Motion to and Motion to Disqualify Disqualify Page 66 of of23 1 DISCUSSION AND ANALYSIS 2 A. The Law Law Governing Governing Judicial Disqualification Disqualification Is Is Set Set Forth Forth in in Guam Statute and and In In 3 the Model Code of Judicial Conduct.

4 1. Guam GuamStatutory Statutory Mandates. Mandates. 5 Judicial disqualifications are Judicial disqualifications are governed governed by by the the substantive substantive rules of 7 rules of 7 GCA GCA §§ 6105 6105 and the and the 6 procedural procedural rules of 77 GCA rules of GCA §§ § 6106 and 6107. 6106 and The relevant 6107. The relevant portion portion of the disqualification of the disqualification statute statute 7 is Section 6105(b)(5), which requires that: 8

9 (b) A Judge (b) Judge sha shall ll aalso disqualify lso disqua lify himself or herherself the following self in the following circumstances, but circumstances, but if, if, following following complete disclosure disclosure to parties in the to all parties 10 10 of the reasons proceeding of reasons for for his or or her her disqualification, disqualification, all parties agree to 11 11 having the Judge continue having continue toto sit in the proceedings, proceedings, he he or she she need not disqualify himself himself or herself: 12 12 (5) Where he oror she she or her spouse, or a person or his or her person within the third 13 degree of relationship degree relationship toto either either of of them, or the spouse spouse of of such such 14 person: (A) is a party to to the the proceeding, or an officer, director, or trustee proceeding, or 15 of of a party; party, (B) is acting as as a lawyer in the lawyer in proceeding ....44 the proceeding 16

17 17 Correspondingly, Section 6106 compels a judge to disclose a disqualification enumerated under

18 6105:55 19 19 Whenever a Justice Justice or Judge shall have knowledge of Judge shall of any any fact fact or or facts facts 20 which, under the provisions of of 6105 ofof this Chapter, disqualify him or her to sit or act act as as such such in in any any action action or or proceeding proceeding pending pending before him or or her, 21 shall be his or her duty to declare it shall declare the same in open open court court and cause a memorandumthereof memorandum thereoftoto be be entered entered in in the the minutes. minutes. ItIt shall shall be the duty of of the 22 clerk to transmit forthwith a copycopy of such such memorandum memorandum to to each each party or his 23 or her attorney who shall have appeared in such action action or proceeding, proceeding, except such parties asas are are presented presented in in person or by attorney attorney when the declaration 24 is made. 25

28 44 77 GCA GCA §§ 6105(b)(5) 6105(b)(5) (emphasis (emphasis added). added). 55 77 GCA GCA § § 6106 6106 ((emphasis added). added).

People People v. Greg Greg Sanres, Sanres, Criminal Case No. CF0461-24 Case No. CF046l-24 Decision and Decision Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of GCA § Objection 77 GCA and Motion 6107 and § 6107 Motion to to Disqualify Disqualify Page Page 77 of23 of23 P Ifaa judge If judge fails failstotodisclose discloseaadisqualifying disqualifyingfactor factorunder underSection Section6105, 6105,then, then,pursuant pursuant to 2 Section 6107, any party 6107, any party to the action who has has appeared in the appeared in the case case may may raise raise the the objection to 3 6 competency.6 In In this this regard, regard, Section 6107 6107 provides, provides, in relevant part, as follows: follows : 4 Whenever aa Justice Whenever Justice or Judge Judge whoshall be disqualified disqualified under the the provisions provisions 5 of this of this Chapter Chapter to sitsit or or act act asas such such inin any any action action or or proceeding proceeding pending pending 6 before him or her neglects or fails to to declare declare his his or or her her disqualification in the manner the manner provided provided by this this Chapter, Chapter, any any party party to such action to such action oror 7 proceeding proceeding whowho hashas appeared appeared therein therein may present to the the court court and andfile file with the clerk clerk a written written statement statement objecting to to the the hearing hearing ofofsuch such matter matter or or any any 8 trial trial of of any any issue issue of of fact fact or or law lawin insuch such action action oror proceeding proceeding before before such such 9 Justice Judge, and Justice or Judge, andsetting settingforth forth the the fact or facts constituting constituting the ground of of the the disqualification disqualification of of such such Justice Justice or Judge. Judge. Copies of of such such written written 10 statement shall forthwith statement shall forthwith bebe served by the the presenting presenting party on each party, or his or or her her attorney, who has has appeared in the the action or proceeding and and on 111 1 the Justice or Judge Justice or Judgealleged alleged in such statement statementto tobe bedisqualified. disqualified. 12 12 Within Within ten ten (10) days days after after the the service service ofofsuch such statement statement as above above provided, 13 13 or ten (10) 10) days days after the filing of ofany any statement, statement, whichever is later in time, 14 the Justice Justiceor orJudge Judgealleged allegedtherein thereintotobe bedisqualified disqualified maymay file tile with the clerk his or her consent in writing that the action or proceeding continue without 15 15 him or her, her, or may may file with with the the clerk clerk his his or or her her written written answer answer admitting or any or denying any or all of ofthe the allegations allegationscontained containedin insuch suchstatement statement andand setting 16 forth any additional material or relevant to the question of his additional fact or facts material 17 17 or her her disqualification. disqualification. The The clerk shall shall forthwith transmit transmitaa copycopy of the Justice's or Judge's consent or answer to each each party or his or or her her attorney attorney 18 who shall have appeared in such action action or proceeding. proceeding. Every Everysuchsuch statement and and every every answer answer shall shall be verified verified inin the the manner manner prescribed prescribed for the the 19 19 verification of verification of pleadings. pleadings. TheThe statement statement of of aparty partyobjecting objectingtotothe the Justice Justice 20 or or Judge Judge on on the the ground ground of ofhis his or orher herdisqualyication disqualificationshall shallbebepresented presented at the the earliest earliest practicable opportunity after his or or her her appearance appearance and and 21 discovery ofof thefaets facts constituting the ground ground of ofthe the Justiee's Justice's or Judge's Judge's disqualification, disqualification, andand in in any event event before be/ the the commencement commencement of the the 22 hearing hearingof ofany any issue of offact fact in in the,action the aetion ororproceeding proceedingbeforebefore such Justice 23 or or Judge. Judge.

24 No No Justice Justice or or Judge Judge who shall deny his or her qualification qualification shall shallhear hear or or pass pass upon the the question question of of his or her own disqualification, but in every case case the 25 question question of the the Justice's Justice's or or Judge's Judge's disqualification disqualification shall shall be be heard heard and and 26 determined by some other Judge. Judge. The Presiding Presiding Judge, Judge, or next senior senior Judge, if if itit isis the the Presiding PresidingJudge's Judge's disqualification disqualification that that is is being being requested, requested, shall shall 27 make make such suchassignment assignmentwithin withinfive five(5) (5) days days after after receiving from the clerk 28

66 77 GCA GCA §§ 6107 6107 ((emphasis added). added).

People v. Greg Greg Sarges, Sanres, Criminal Case No. CF0461-24 Decision and Decision and Order Order Denying Denying the the OAG's OAG's Statement Statement of ofObjection Objection 77 GCA GCA §§ 6107 6107 and and Motion Motion to to Disqualify Disqualify of23 Page 8 of23 1 the notice that the the statement statementofof disqualification disqualification has has been been filed. filed. In In the the case case of a Justice's disqualification, the matter shall be heard by the Supreme of a Justice's disqualification, the matter shall be heard by the Supreme 2 Court constituted without the questioned Justice. Justice. 3 If Ifsuch such Judge admits his Judge admits his or or her her disqualification, disqualification, or or files his or or her her written written 4 consent that thatthe theaction actionororproceeding proceeding be tried before another Judge, or another Judge, or fails fails to to file file the the answer answer within the ten within the ten (10) (10) days days allowed, allowed, oror if if it it shall shall be be 5 determined determined afterafter the the hearing hearing that thathehe or or she she is is disqualified, disqualified, the the action or 6 proceeding proceeding shall shall be be heard heard and and determined determined by another another Judge of the Superior Judge of Court who is is not not disqualified. disqualified. Such Such other other Judge Judge shall shall be assigned assigned in in the the 7 same manner as same manner asthe theJudge Judgewhowhowas was disqualified disqualified was assigned assigned to hear hear the the 8 case initially. case initially.

9 2. Model ModelCode CodeofofJudicial JudicialConduct: Conduct: Canon Canon 3 10 Canon 3 of of the the Model Code of ofJudicial Judicial Conducts (the"Model Conduct7 (the "Model Code") Code") mandates that"[a] mandates that "[a] 11 11 shall perform judge shall performthe theduties dutiesofofjudicial judicialoffice officeimpartially impartiallyand anddiligently," diligently,"and and3E.(1 3E.(l)(d)(i) )(d)(i) and and 12 12 (ii) (ii)of ofthe the Model Model Code's Code'sdisqualification disqualification factors mirrorthose factors mirror thoseofof77GCA GCA§§6105(b)(5)(A) 6105(b)(5)(A) and (B): and (B): 13 13

14 E. Disqualification.

15 15 (1) (1) AAjudge judgeshall shalldisqualify disqualifyhimself himselfororherself herselfininaaproceeding proceedingin inwhich which the the judge's impartiality might reasonably be questioned, including impartiality might reasonably be questioned, including but but not limited limited to instances to instances 16 16 where: where: 17 17 (d) d)the the judge judge ororthe the judge's judge'sspouse, spouse, oror aa person within within the third degree of of relationship* to either of ofthem, them, oror the the spouse spouse of ofsuch such a person: person: 18 18 (i) (i)isisaaparty party to to the the proceeding, proceeding, or or an officer, officer, director director or or trustee of trustee of a party; party, 19 19 (ii) (ii)isisacting actingasas aa lawyer lawyer inin the the proceeding, proceeding; .... 20 20 B. B The OAG OAG hashaswaived waiveditsits right right to to object object to to Judge Tolentino's qualification to preside 21 over cases involving over cases involving the theOffice Office of the theAttorney Attorney General. General. 22 As As highlighted, highlighted, above, above,Section Section6107 6107requires requiresthat that the the statement of a party statement of party objecting to the 23 Judge on Judge on the the ground ground of his his disqualification disqualification shall shall be be presented " the earliest presented "at earliest practicable practicable 24

26 26 7 7 The ABA's The CanonofofJudicial ABA's Canon shall apply Ethicsshall JudicialEthics applyto to and and govern govern the the conduct conduct of of Judges Judges of of the Superior Court of of Guam. 27 27 7 GCA 7 6103. The GCA §§6103. The Model ModelCode CodeofofJudicial JudicialConduct Conductapplicable applicable in in Guam Guam was was adopted adopted by the House of the House of Delegates of American Bar the American Bar Association Association onon August August7, 7, 1990, and amended 1990, and amended on on August August 6, 6, 1997, 1997, August August 10, 10, 1999, 1999, and August 12: 28 2003. It is hereinafter hereinafter referred referredto toas asthe the"Model "Model Code." Code."

People People v. v. Greg Greg Sarges, Sanres, Criminal Criminal Case No. CF0461-24 Case No. CF046l-24 Decision and Decision Order Denying and Order Denying the the OAG's OAG's Statement of Objection Statement of § 6107 GCA § Objection 77 GCA 6107 and and Motion Motion to to Disqualify Disqualify Page 9 of23 23 1 opportunity after his Q or her appearance and discovery of the facts constituting the ground gofr the 2 . , , . . . . . Justice's Justlce Q or Judge Judge's disqualification, and in any s d1squa11ficat1on, any event event before before the the commencement commencement of of the hearing hearing of of 3 any issue any issue of of fact fact in in the the action or proceeding action or proceeding before before such such Justice or Judge." Justice or Judge." 77 GCA GCA §§ 6107 6107 4 (emphasis added). (emphasis added). The The Guam Supreme Court in Van Guam Supreme Van Dex has confirmed Dox has confirmed that that statements statements of of 5

66 presented at objection shall "be presented at the the earliest earliest practicable practicable opportunity after discovery of of the facts

77 constituting the ground for disqualification." Van Dox uv. Super Super Co. Ct. (Alcorn), i! 44. Guam 77 1i (Alcorn), 2008 Guam 8 Thus, the controlling Thus, controlling law in Guam Guam "[w]ith "[w]ith respect respect to to the thestatutory statutory provision provision requiring requiring that that 9 disqualification be urged at the 'earliest disqualification 'earliest practicable practicable opportunity," opportunity,' the intention is 'clear 'clear that failure 10 10

11 1 Id. 1i,r 45 (quoting Caminetti uv. Pay. to comply with the provision constitutes a waiver."' Id Pac. Mai. Mut. Ins. Ins.

12 Co. o . of o fCal., 139 P.2d 930, f a l 139 930, 933 933 (Cal. (Cal. 1943) 1943) (emphasis (emphasis added)). added)). A A finding finding of of timeliness timeliness should be

13 of justice. Id. construed liberally in the interest of ,r (citing Eagle Maint. Id 1145 Mains. & & Supply Co. v.v Super Supply Co. 14 14 Ct., 16 Cal. Cal. Rptr. Rptr. 745, 745, 747 747 (Dist. (Dist. Ct. Ct.App. App.1961)). 1961)).AAtimely timelystatement statement of of objection objection is is made made "prior 15

16 to any any hearing hearing before before the the challenged challenged judge in the matter." Id. ,r (citing Hollingsworth, 236 Cal. Id 1]46 16 17 17 Rptr. at 195-96). Rptr. Van Dox also cites to People v. Pariah, l95-96). Van court held aa disqualification Panah, where the court disqualification

18 18 because the facts untimely because facts of the case case were known known in in early early September, September, but the moving moving party party 19 19 waited until the eve of of trial in November to move move for for disqualification. ,r (citing People v. disqualification. Id. 1146 20 Pariah, 107 P.3d 790, Panah, 107 790, 824). 21 People v. Win, More recently, in People 17, the Guam Wia, 2020 Guam 17, Guam Supreme Supreme Court Court applied the 22

23 "silence-by-waiver" mle rule adopted adopted in San San Union, Inc. Inc. v. Arnold, Guam .10, and held that Arnold, 2017 Guam

24 "[r]ather than interpreting that the parties interpreting "agree" to mean that parties must expressly expressly agree to waive the 25 judge's disqualification, we held held that remaining remaining silent silent constitutes constitutes waiver, at least in the context of waiver, at 26 77 GCA GCA §§ 6105(a), "[t]o avoid 6105(a), "[t]o avoid the the possibility possibility of of parties parties 'l[ying] 'l[ying] in in wait, wait, raising raising the the recusal recusal issue issue 27 28 ruling on the merits.'" only after learning the court's ruling merits. 7 77 Id. (quoting Phillipe v. Amoco Oil (quoting Phillips Oil Co., 799 28

People People v. v. Greg Greg Sarges, Sanres, Criminal Case No. CF0461-24 Case No. CF046l-24 Decision and Decision Order Denying and Order Denying the the OAG' OAG'ss Statement of Objection Statement of GCA § Objection 77 GCA and Motion 6107 and § 6107 Motion to to Disqualify Disqualify Page 10 of23 Page 10 of23 1 F.2d 1464, 1464, 1472 1472 (11th Cir. 1986), cert. (nth Cir. 1016 (1987)). Thus, Guam allows for the denied, 481 U.S. 1016 cert. denied, 2 2 waiver ofSection waiver of 6105(b) conflicts Section 6105(b) conflictsby by the the silence silence of ofthe the party party who who sits sits on on his right to to object. object. Id. Id 3 at~ 29. 8 at1[29.8 4 In his Answer, Judge Tolentino raised the issue of of timeliness, stating stating "[t]hat neither neither Mr. 5

66 Moylan nor the Office of the Attorney Attorney General General had ever challenged or objected to me presiding

7 over this case case until until the the statement statement of of objection obi actionand andmotion motiontotodisqualify ... " Answer at disqualify..."Answer at~19. 9. That That is 8 8 to say, to the OAG and say, the Mr. Moylan and Mr. Moylan knew knew since their meeting since their in December meeting in December 2022, 2022, that that Judge Judge 9 preside over Tolentino would be assigned to preside over criminal criminal cases cases which which Mr. Mr. Moylan, as as the Attorney 10

111 General of Guam, would bring in the name of of the the People People of ofGuam. Guam. Despite Despite its its urging urging that the

12 12 Court apply the the reasonable person standard who who has "knowledge ofall "knowledge of all the the facts," facts," it is significant 13 that the the OAG does not challenge Judge Tolentino's description description of a meeting meeting held between them 14 14 and their staff in in December, December, 2022, 2022, where where the the judge judge and Mr. Mr. Moylan Moylan discussed the the precise precise question 15 15 6 of whether aa conflict of conflict would would exist exist "in [Mr. Moylan's] "in [la/k. Moylan's] election as the Attorney Attorney General and the l16

17 17 prosecution of prosecution criminal cases of criminal cases before before the undersigned" undersigned" and "[i]t "[i]t wa was det determined er tthat tthe

18 18 underlying my circumstances underlying my recusal recusal in in matters that that Mr. Moylan was a lawyer lawyer no no longer longer existed." existed." 19 19 Answer at Answer W 6, 7. at~~ 20 Thus, it is uncontroverted uncontroverted that, that, since since 2022, 2022, Mr. Mr. Moylan Moylan and and the the OAG knew that Judge 21 22 Tolentino is assigned by the Superior Court of Guam, Tolentino Guam, applying applying the Administrative Administrative Rule, to preside 22

23 over criminal cases which are are brought in in the the name name of the People of Guam by the OAG, through

24 24 Attorney General Moylan. Based upon the "silence-by-waiver" rule rule most most recently recently reiterated reiterated in 25

27 88 See See also, also, Clarette Charette v. Clarette, 60 A.3d v. Charette, A.3d 1264, 1264, 1270- 1271 (Maine 1270-1271 (Maine 2013) Gudge (judge had hired hired a party's brother-in-law to do construction construction work workforforhim himand and his his daughter daughter was close friends with with the the same party's daughter, opposing party shoul same party's should 28 have have raised anan objection objection based basedupon uponthe theappearance appearanceofofimpropriety improprietybefore beforethe thecourt courtissued issueda judgment unfavorable to him, him; the the appellate court finding finding that that the the facts were known known toto the the party becausethey they occurred occurredover overthe thecourse courseof oftwenty- twenty seven years while while all allwere were living livingininthe the same same small community).

People People v. Greg Greg Sarges, Sanres, Criminal Case No. CF0461-24 Case No. CF0461-24 Decision and Decision Order Denying and Order Denying the theOAG' OAG'ss Statement of Objection Statement of 7 GCA Objection 7 6107 and GCA §§ 6107 Motion to and Motion to Disqualify Disqualify Page 11 of23 of23 1 Wia, the OAG is barred from complaining- Win, for the complaining - for the first first time in nearly two years since Mr. Mr. Moylan Moylan 2 assumed office assumed office -- that that Judge Tolentino is disqualified Judge Tolentino disqualified because Mr. Moylan's because of Mr. Moylan's biological biological 3 relationship to Judge Tolentino's stepchildren. 9 Tolentino'sstepchi1dren.9 4 Although the Court Although Court finds that the the OAG OAG has has waived waived any right to to object object to toJudge Judge Tolentino's Tolentino's 5

6 qualifications to qualifications to preside preside over over matters matters in in which of the Attorney General and Attorney which the Office of

7 represent the People General Moylan represent People or or aa party, because the OAG continues continues to raise the issue of of 8 the "relationship" between Attorney General Moylan and Judge Tolentino/his 9 in over spouse/stepchildren in over fifty fifty (50) criminal criminal cases cases assigned assigned to to Judge Tolentino, the Court now 10 IO

111 addresses the substance of the Objection.

12 12 c. C. Judge Tolentino Judge Tolentino is not not related related to to Attorney Moylan either Attorney General Moylan either by by consanguinity consanguinity affinity within or affinity withinany degree; therefore, anydegree; therefore, there thereisis no norelationship relationship to todisclose disclose under 13 Guam LawLaw or or the the Model Code. Code. 14 determining whether The threshold question in determining whether Judge Judge Tolentino Tolentino isis disqualified disqualified under under 15 15

6105(b)(5)(A) or Section 6105(b)(5)(A) (B) is whether he (or his spouse) is related within three degrees to a or (B) 16

17 17 party to the the proceeding oceeding or to aa la to the wyer to lawyer the prproceeding. oceeding. AA fafamilial milia rrelationship ela tionship mayy be

18 established by consanguinity or or affinity. affinity. If established by consanguinity, consanguinity, it is aa relationship relationship by 19 19 ties of blood; blood, if established by affinity, affinity, itit exists exists between of the between one spouse and the consanguinity of 20 other.1° Thus, "consanguinity" other. 10 Thus, "consanguinity" measures measures the the relationship relationship by by blood blood and and "affinity" "affinity" measures measures the the 21 11 22 relationship by relationship by marriage. marriage." 22

25 99 See, See,this Court's Decision thisCourt's Decision and Order Order Denying Denying thetheOAGOAG's'sStatement Statementof ofObjection Objectionand andMotion Motiontoto Disqualify Disqualt/ in in People Peopl v. v. Ybanez, Ybanez, Superior Court of of Guam Criminal Criminal Case No. CF0447-23 CF0447-23 (Jun. 12,2024), (Jun. 12, 2024),which whichrejects rejectsthe theObjection Objection file filed 26 therein by thethe OAG OAG asas procedurally procedurally defective. It It is is unknown unknown why the OAG OAG fails fails to to acknowledge acknowledge orordiscuss discuss Ybanez, Ybanez which which reached a diametrically opposed conclusion to the decisions of ofthe the courts courts in Aguon Aguon and and Tatting/ong. Taitingfong. 27 10 10 See,generally, See, generally, 46 46 Am. Am. Jr. Jr. 2d 2dJudges §§ 112 112 (Aug. 2024). 11 11 Id (citing Id. (citing Alabama State State Personnel Personnel Bd. Ed V.V. Garner, 4 So.3d 545 545 (Ala. (Ala. Civ. Civ. App. App. Ct.Ct. 2008)). See also,Suggs Suggs v. State, State, 28 51 N.E.3d 1190, 1194(Indiana 1190, 1194 (Indiana2016) 2016)("Related ("Related by marriage" marriage" is commonly referred to as affinity, which which is is defined defined as a 'the 'the connection connection existing existingininconsequence consequenceof ofmarriage marriagebetween betweeneach eachofofthe themarried marriedpersons persons and and the kindred of the other. It It is is distinguished from consanguinity, distinguished from consanguinity,which whichdenotes denotesrelationship relationshipbybyblood."') blood."') (citation (citation omitted).

People People v. Greg Greg Sarges, Sanres, Criminal Case Case No. No. CF0461-24 CF046l-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of Objection 7 GCA §§ 6107 7 GCA 6107 and to Disqualify Motion to and Motion Disqualify Page 12 12 of of23 1 The disqualification provisions provisions of Section Section 6105 and Canon 6105 and Canon33 of of the the Model Code Code bar bar a 2 Judge from presiding judge from presldmg over matters matters where the Judge judge or his spouse spouse is wzthm three degrees of within three of 3 relationship (e.g., (e.g., consanguinity or affinity) consanguinity or affinity) to to aa party or a party or lawyer in a lawyer in the the proceeding. proceeding.77GCA GCA §§ 4 6l05(d) 6105(d) provides provides that that "[t]he "[t]he degree degree of ofrelationship relationship is is calculated accordingto calculated according to the the civil civil law 5

6 system," 12 and systern,"12 and "third "third degree degree of relationship" relationship" isis defined defined in in the the Model as the Model Code as the "great- "great-

7 grandparent, grandparent, grandparent, grandparent,parent, parent,uncle, uncle,aunt, aunt,brother, brother,sister, sister,child, child,grandchild, grandchild, great-grandchild, 8 nephew niece." 13 Neither or niece."13 nephew or NeitherJudge JudgeTolentino Tolentinonor norhis hiswife wife are are related related by by blood blood or origin origin 9 (consanguinity) by marriage (consanguinity) nor by marriage(affinity) (affinity) to Attorney General General Moylan Moylan as as Mr. Moylan Moylan does does not 10

11 11 fall under under any any of these relationships. relationships.

12 12 Extending the "third degree of ofrelationship" relationship" beyond beyond that that which which is contained in the the Model Model

13 13 Code to include include relationship byaffinity relationship by ajiniiy (marriage), Attorney General General Moylan Moylan is is not not related related by 14 affinity to either either Judge Tolentino or the Judge Tolentino the judge's judge's spouse. spouse. The The "relationship" "relationship" between between Judge Judge 15 15

16 Tolentino and Attorney General and Attorney General Moylan is best illustrated by the illustrated by the legal legal maxim maxim of "a/yinis "affinis Mei mei 16

17 17 aj§'ini5 non est affinis non mihi aj§'inis est mini affinis" or "A "A relative relative of ofmy myrelative relativeby by marriage marriage is not my my relative." relative." Suggs Suggs

18 v. v. State, 51 N.E.3d 1190, 1194-1195(Indiana 1190, 1194-1195 (Indiana2016) 2016)(quoting (quotingBallentine's Ballentine's Law Law Dictionary Dictionary with 19 Pronunciations 45 (3d Pronunciations 45 (ad ed. ed. 1969)). More clearly clearlystated, stated, in in determining determining whether whether two two persons persons are 20 related by affinity, affinity, or ormarriage, marriage, "the "therelationship relationshipdoes does not not exist existwhere where more more than than one one marriage is 21 22 required to to establish establish it." it." Johnson v. v. State, 169 Tex.Crim. 146, State, 169 146, 147, 147, 332 332 S.W.2d 321, 321, 322 322(Tex. (Tex. 22

23 Ct. Crim. App. 1960). 1960). Thus, Thus, Judge Tolentino is not related Judge Tolentino related to to Attorney Attorney General General Moylan within

24 any degree degree of affinity or or relationship. relationship. 25

26 12 See, Alabama State Personnel Ba, 12 See, Alabama State Personnel Bd., supra ("The ('The civil civillaw lawmethod methodofofcomputing computingdegrees degrees of ofkinship kinship isis to to begin begin the th 27 count with with oneone of ofthe the persons persons inin question question and and proceed proceed up to to the the common common ancestor and thenthen down down to the other person, calling calling ititaa degree degree for foreach each person person both both ascending ascending and and descending. TheThe number number thus thus counted counted expresses degree oof expresses the degree 28 kinship.") kinship.")(finding (findingnonoduty dutytotorecuse recusebecause because judge judge and and attorney inin case related within case were not related within the required degree). degree). 13 See Model Code, Attachment A at p. 10 ("Terminology"). 13 See Model Code, Attachment A at p. IO ("Terminology"). ·

People People v. Greg Greg Sanres, Sanres, Criminal Case Case No. CF0461-24 CF0461-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of 7 GCA Objection 7 6107 and GCA §§ 6107 Motion to and Motion to Disqualify Disqualify Page 13 of23 of23 1 1 of the dissolution of the dissolution Moreover, the Moreover, JudgeTolentino's the marriage between Judge and Attorney Tolentino's wife and 2 General Moylan twenty years over twenty Moylan over ago also years ago the "affinity" also terminated the the former betweenthe "affinity" between spouses former spouses 3 resulting from such marriage. Herrera such marriage. v. Hernandez, Herrera v. Ca1.Rptr.3d491,494 Hernandez, 80 Cal.Rptr.3d (Cal. Ct. App. 491, 494(Cal. 6th App.6th 4 Dist. 2008) Dist. (dissolution of 2008) (dissolution marriage terminates of marriage between parties terminates affinity between arising from parties arising such from such 5

6 6 marriage for purposes of determination purposes of of whether a juror determination of is subject juror is tochallenge subjectto for bias challengefor even if bias even if

7 7 the the former former spouses his and his Tolentino and Judge Tolentino Consequently, while Judge together). Consequently, child together). have a child spouses have 8 stepchildren enjoy relationshipof enjoy a relationship in the first degree to each other by of affinity in virtue of byvirtue thejudge's of the judge's 9 marriage mother, 14 there to their mother,'4 marriage to Judge between Judge degree between any degree relationship to any absolutely no relationship there is absolutely 10 10

11 Tolentino and Consequently, the provisions of General Moylan. Consequently, and Attorney General Section 6105 of Section not 6105 do not

12 12 apply.is apply-15 13 13 D. The The OAG OAGhas authoritynor legalauthority nolegal providedno hasprovided to necessary to avermentsnecessary factualaverments norfactual 14 establish a relationship requiring disqualification establish a relationship requiring disqualification or or recusal recusal under under Section Section 6105.

15 The OAG OAG relies relies heavily heavily on on the the decisions decisions in People vs. Case No. Criminal Case vs. Taitingfong, Criminal No.

16 16 CF0024-24 (Jun. (Jun. 4, 2024) (Iriarte, 4, 2024) and in People (Iriarte, J.), and support of San Agustin, 2024 Guam 2 in support vs. San People vs. of 17 17 its Objection. However, neither case However, neither legal support case provides legal for the support for finding that the finding Judge Tolentino that Judge Tolentino 18 is disqualified presidingover from presiding disqualified from casesinin which over cases the OAG which the involved, as OAG is involved, both can as both be can be 19 19

20 Court. 16 Curiously, distinguished from the case before this Cou1t.16 Chief Prosecutor Rudolph fails ActingChief Curiously,Acting fails

22 22 14 Bliss v. Caille Bros. 14 In re In reJoseph Joseph&&Sally Sally Grablich Trust, 984 N.W.2d 517, 552-553 Grablicn Trust, (Mich. Ct. App. 2021) (citing Bliss 552-553 (Mich. Caille Bros. 23 Co., 113 Co., 113 N.W.W. 317317 (Mich. (Mich. 1907) 1907)("when ("whena acouple couplemarries, marries,each each spouse related by becomes related spouse becomes by affinity toto the othe the other spouse's blood blood relatives relatives by by the the same (emphasis added)). same degree") (emphasis 15 Attorney General 15 Section 6105(b)(5)(A), but merely a under Section proceeding under 24 Attorney General Moylan Moylan is not not a "party" "party" to to the criminal proceeding the criminal representative of of the the People, who, along with with the the Defendant, areare the only "party" "party"to the criminal to the case. See, criminalcase. People v. See, People 25 Robinson, Robinson, 27 Misc.3d, 635, 637, 637, 898 898 N.Y.S.2d N.Y.S.2d 438,439 438, 439 (Sup.Ct. (Sup.Ct.2010)("the 20l0)("the only only parties litigation are parties to criminal litigation th are the People, People, represented by the district attorney attorney of ofthe andthe county,and the county, theaccused, represented by assigned accused, represented retaine assigned or retained 26 26 counsel."), counsel."); 55 GCA GCA §§ 30l03("The 30103("TheAttorney AttorneyGeneral General shall shall have have ... the right ... to bring behalf of action on behalf bring action Gua of Guam representing representing the the citizens citizens as asaawhole wholeforforredress redressofofgrievances grievanceswhich whichthethecitizens citizens individuallycannot individually cannotachieve ..... " As achieve...." 27 27 such, Section 6105(b)((5)(A) such, Section 6l05(b)((5)(A) does does not not apply apply because Tolentino is not related because Judge Tolentino related within degrees to within three degrees to a party. party. 16 decision bound by the decisions are not bound 16 InInboth bothcases, cases,thetheDefendant, Defendant,not nothe theOAG OAGfiledfiledthe theObjection. Objection. Moreover, Moreover, trial trial courts courts are 28 28 of ofother other trial trial courts' courts' ruling rulingononthe thesame same issue, issue; therefore, thisthis Court Taitingfong. Although does not adopt the ruling in Taitingfong. Court does San Agustin Agustin isis controlling controllinglawlawininthis thisCourt, Court,ititisisinapplicable inapplicableininthis thiscase casebecause because itit does involve the does not involve circumstance the circumstances addressed addressed by by the the Guam Guam Supreme Supreme CourtCourt in inSan San Agustin.

People People v. v. Greg GregSanres, Sanres, Criminal CriminalCase Case No. No. CF0461-24 CF0461-24 Decision and Decision Order Denying and Order theOAG's Denying the OAG's Statement of Objection Statement of Objection 7 7 GCA GCA §§ 6107 6107 and Motion to and Motion to Disqualify Disqualify Page 14 14 of of23 1 to cite cite or discuss this Court's Decision discuss this Decision and and Order Order Denying Denying the the OAG's OAG's Statement of Objection 77 Statement of 2 GCA GCA §§ 6]07 6107And AndMotion Motion totoDisqualmf Disqualifyin inPeople Peoplevs. vs. Ybanez, Ybanez, Superior Court of Guam Guam Criminal 3 Case Case No. CF0447-23 CF0447-23 (Jun. 12, 2024) (Jun. 12, 2024) in in its Objection despite Ms. Rudolph despite Ms. having filed the Rudolph having the 4 Objection 17 Objection in in that case case and andbeing beingserved servedwith withthe theCourt's Court'sdecision decisiondenying denyingthe thesame. same." 5

6 1. 1. San Agustin does not not apply to the the instant instant case. case.

7 The OAG OAGmisapplies misapplies the the holding holding of ofthe the Guam Guam Supreme Supreme Court in San San Agustin, which is 8 8 largely procedural. procedural. Summarized in its most simple Summarized in simple form, the rule in San San Agustin Agustin is that a judge 9 who is disqualified disqualified from from presiding presiding over over aa case case must must also also be disqualified disqualified from serving serving as as the the 10

11 11 recusal judge in the same recusal judge same case.San case. San Agustin at at ii ,i 36 36 ("We ("Weexercise exerciseour oursupervisory supervisory authority authority to

12 12 clarify clarify that that aa disqualified disqualified judge judge should should not be appointed as as aa recusal recusaljudge."). judge."). San San Agustin Agustin does 13 not, not, as the the OAG OAG contends, contends, extend extend in any any way way to to support support aa finding finding that that Judge Judge Tolentino Tolentino is is 14 disqualified in the instant caseor instant case orin inall all cases casesinvolving involving Attorney General Moylan. Neither Neither that that 15 18 question nor one one remotely like like itit was was before beforethe the Guam Guam Supreme Supreme Court inSan San Agustin. Agustin.18 16

17 2. The TheCourt's Court'sDecision Decision and Order in Ybanez applies here.

20 20 17 17 See, Decision and See, Decision and Order Denying the Order Denying the OAG OAG's Statement of 's Statement Objection 7 of Objection GCA § 7 GCA § 6107 And Motion Motion to to Disqualyj/ Disqualify in CF0447-23 (Jun. (Jun. 12, 12, 2024), 2024), which which was was served sewed upon the the OAG OAG viavia Email EmailononJune June 12,12, 2021,Notice 2021; Notice of ofEntry Entry onon Docket Docke 21 21 of ofDeci5ion Decision and Order Denying Denying the OAGOAG's 's Statement Statement of Objection 77 GCA of Objection § 6107 And GCA §6107 Motion to And Motion to Disqualifv Disqualify (Jun (Jun 13, 13 2024) 2024) which was sewed served upon upon the the OAG via viamail mailon onJune June 13, 13, 2024. 2024. There is no explanation for the glaring omission 22 22 of this of Court's Decision in this Court's in Ybanez Ybanez from the OAG's Objectionand OAG'sObjection and less less of ofan anexcuse excuse forforisisabsence absence givengiven that that the th OAG's OAG's Response Response contains contains aa brief briefmention mention of ofthis thisCourt's Court'sDecision, Decision,without withoutdiscussion discussion or orcursory cursory attempt attempt at a 23 distinction. See See Response Response at p. 3. Ms. Rudolph is is reminded that Rule Rule 3.3 3.3 of the Guam Rules of Professional Conduct Conduc mandates mandates aalawyerlawyer practice candor candor toward toward the thetribunal tribunalandandnot notknowingly knowinglyfail fail to disclose to thethe tribunal tribunal legal authority authori 24 24 in the the controlling jurisdiction known to to the the lawyer lawyer to to be be directly adverse adverse to to the theposition positionof of the the'client. It is insufficient insufficien that the Response contain a subtle nod to Ybanez Ybanez as as "disqualification "disqualificationwas was denied denied in in one one matter." matter." Response Response at at p. 6. 18 25 18 InInSan SanAgustin, Agustin, Judge Tolentino voluntarily Judge Tolentino voluntarily reused recusedhimself himselfrom hearingthe fromhearing criminalmatter thecriminal matterduedue toto aa close close personal persona relationship with with both both defendants that case. defendants in that case.As As distinguished distinguished from from the the instant instantmatter, matter,thetheconflict conflict involved involved parties partie 26 to the the criminal criminal proceeding, not Attorney General General Moylan, who who isis not not aa party party in in this this case. case. See, See, fn. 15,15, supra. More supra. Mor importantly,San San Agustin addressed whetherJudge addressed whether JudgeTolentino, Tolentino,who whohad hadpreviously previouslyrecused reused himself from presiding ove over 27 the trial court case, was also disqualified disqualified from fromsitting sittingas asthe therecusal judge in recusaljudge inthe the same same case. The The Supreme Supreme Court simply decided, as decided, to Judge as to JudgeTolentino's Tolentino's recusal decision, "Under recusal decision, "Under 7 GCA §§6107, 7 GCA disqualified judgelacks 6107, aa disqualifiedjudge lacksthe power to the power to hear hea 28 and determine determine thethe matter. matter.Once Oncedisqualified, disqualified, a judge judge can cantake takenonoaction action-- even when acting in in a limited limited capacity capacity asas a recusal judge." The substantive recusal judge." questionof substantive question ofdisqualification disqualification involved involved facts very specific specific to Presiding Judge Alberto C. Judge Alberto Lamorena III III and and Attorney Attorney General General Moylan Moylanand, and, therefore, therefore, are are distinguished distinguished on on those facts from application here.

People v. Greg Greg Sarges, Sanres, Criminal Case Case No. CF0461-24 CF0461-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of Objection 7 GCA §§ 6107 7 GCA 6107 and to Disqualify Motion to and Motion Disqualify Page 15 of23 of23 1 In In People People v. Court of Ybanez et al., Superior Court v. Ybanez Criminal Case Guam Criminal of Guam No. CF0447-23 CaseNo. (Jun. CF0447-2 (Jun. 2 12, 2024), this 12, 2024), Court rejected this Court the OAG's rejected the Motion to OAG's Motion Disqualify Judge to Disqualify Tolentino on Judge Tolentino identical on identical 3 19 grounds, finding: grounds, finding." 4 Judge Tolentino's Judge spouse isis not Tolentino's spouse poNy to not a party proceeding, or the proceeding, to the an officer, or an 5 director, or director, ofaa party. She is not acting as or trustee of as aalawyer theproceeding; lawyer in the proceeding, 6 6 known by the nor known Judge to the Judge have an to have interest that aninterest could be that could substantially besubstantially affected affected by thethe outcome outcome of the proceeding. She is the proceeding. is not, to the not, to Judge's the Judge's 7 knowledge, likely to knowledge, witness in material witness be aa material to be proceeding. Therefore, the proceeding. in the none none ofof these circumstances applies these circumstances to Judge applies to Tolentino to Judge Tolentino the invoke the to invoke 8 mandatory disclosure mandatory requirements of disclosure requirements 6106. Section 6106. of Section 9 Court ruled This Court further that ruled further JudgeTolentino's that Judge prior recusals Tolentino's prior duetoto Mr. recusalsdue Mr. Moylan's 10

111 1 biological biological relation relation to his his stepchildren did not stepchildren did mandate his not mandate disqualification under his disqualification the under the

12 12 particularlywhere circumstances, particularly circumstances, thereisisno where there allegation of a conflict noallegation other than conflict other the mere than the fact of a mere fact

13 13 familial relationship relationship between Mr. Moylan and the judge's Moylan and stepchildren: judge's stepchildren: 14 ...[I]n consideringdisqualification ... [I]nconsidering under Section 6105(a), disqualification under matters is "whatmatters 6l05(a), "what 15 15 not 'actual bias,' but but the 'appearance of bias."' bias."' Van Van Dax Dox ,r 1132, citing Dizon Dizon v. v. Super Super Cr., Ct., 1998 Guam 33,r118. 1998 Guam 8. InInevaluating evaluatingthe theOAG's OAG's claims, this Court 16 16 assumes assumes as as true true all all evidence evidence found found in the the record and and in the in Objection, even the Objection, 17 if if uncorroborated uncorroborated by by additional additional evidence, and and applies "the standardstandard of a 'reasonable person' who who knows knowsall allthe thefacts, facts,and understands the contexts andunderstands 18 of ofthe parties,and the jurisdictions, parties, andcontroversies controversiesinvolved ... "Id involved..." ,r 32, quoting Id.1132, Ada v. Guam22 v. Gutierrez, 2000 Guam 22,r,r Moreover, "[a] court 12-13.Moreover, W 12-13. should not court should 19 hypothesize about what the reasonable person the reasonable would believe personwould believe only upon upon the 20 moving party's party's allegations. allegations. Instead, Instead, itit should should decide what the decide what reasonable the reasonable person would believe about a judge's judge's partiality given all the given all relevant facts the relevant 21 in in the controversy." controversy."AdaAdaqt,r 12. *** 22 22 *** 23 ·111 theinstant In the instantcase, case,the non-disclosureof thenon-disclosure therelationship ofthe complained of relationshipcomplained of by the the Office of of the the Attorney Attorney General General did did not within the fall within not fall specific the specific 24 24 disqualification provisions of disqualification provisions of 7 GCA §§6105(b), 7 GCA 6105(b); therefore, therefore, Judge Tolentino Judge Tolentino was not required to to disclose and seek any agreements from the any waivers or agreements 25 parties under under Section 6016. 6016. As such, such, the Court DENIES the Obj sectionof Objection of 20 26 the OAG OAGto toJudge Judge Tolentino's Tolentino'scompetency competencyon onthese grounds. thesegrounds.20

28 19 19 The Court incorporates its Decision The Decision in in Ybanez Ybanez herein as if set forth. if fully set forth. 20 EuSee, See,Ybanez Ybanez at pp, pp. 13-15. 13-15.

People People v. v. Greg Greg Sarges, Sanres, Criminal Case No. CF0461-24 Case No. CF046l-24 Decision and Decision and Order Denying the Order Denying OAG's Statement the OAG's of Objection Statement of Objection 77 GCA GCA § § 6107 6107 and andMotion Motion to to Disqualify Disqualify Page 16 16 of23 of23 1 Judge Tolentino's Response to Judge Despite filing aa Response weeks 2024, just a few weeks 12, 2024, August 12, on August Answer on Tolentino's Answer 2 2 after the Ybanez Decision, the Ybanez the OAG Decision, the address this failed totoaddress OAG failed Court's ruling this Court's therein or ruling therein otherwise or otherwise 3 3 21 proffer proffer aa good faith argument good faith to rule argument to differently in this case. rule differently case." Thus, the Court's ruling Ybanez Thus, is Ybanez is 4 as applicable to the instant case despitethe case despite OAG's urgings to adopt Taitingfong theOAG's and San Agustin. Taitingfongand Agustin. 5

6 6 3. Judge Judge Tolentino is not biased per se. Tolentino is

7 7 In In its Judge Tolentino is that Judge argues that OAGargues the OAG Judge Tolentino's Answer, the Response to Judge its Response 8 8 » "Biased, "Biased, Per Per Se." Se." Response Response at at p. p. 3. 3. However, However, the the OAG OAGprovides providesno nosound soundlegal authority in legal authority 9 support of this support of bare assertion. this bare Indeed, the assertion. Indeed, Court is the Court gravelyconcerned is gravely that the concerned that arguments the arguments 10

111 advancing this position position completely completely misrepresent state of the current state misrepresent the arguing a position of the law by arguing position

12 12 that by the rejected by that was clearly rejected drafters of the drafters thestatute ofthe mandating disqualification. statute mandating In the disqualification. In 1985 the 1985

13 13 noted: Section 6105(b), the Compiler noted: Comment to Section 14 14 1985 COMMENT: 1985 COMMENT: This drafterhas Thisdrafter heard many hasheard comments from many comments attorneys from attorneys 15 15 who have objected to the who the procedure provided in the procedure provided Guam CCP. Many the Guam Many attorneys have for the preferencefor have shown aapreference California method of determining the California 16 16 disqualifications. However, the disqualifications. However, the California CCP, §§ 170, 170, is is adapted adapted to the the 17 17 multiple-court Such aa system system in California. Such multiple-court system cannot be system cannot transferred be transferred without change to without change Guam because to Guam our unified, because of our single court unified, single system. court system. 18 18 Therefore, this Therefore, this Section Section adopts those portions adopts those portions ofof California California § §170 170 which which deal with with the the procedure, substance of procedure, but not substance of judicial judicial disqualifications 19 19 and they have been adapted to Guam. 20 Not Not included included isis an an equivalent equivalent of of California California CCP CCP §§ 170.6 170.6 - relative relative to 21 prejudice. Under this law, an attorney disqualification for prejudice. attorney could, by could, by filing tiling an affidavit only, require that only, require recuse himself. that a judge recuse receiving himself. After receiving 22 22 comments on comments both sides on both this question, sides of this this drafter question, this believes that drafter believes the that the 23 sections provide foregoing sections adequate relief provide adequate for judicial relief for bias, prejudice judicialbias, and prejudice and conflict of interest. LTo %add ofinterest. California law 1 the California law permitting automatic permitting automatic 24 24 disqualification disqualification upon upon Q affidavit g!![prejudice !ll! affidavit fprejudiee could,Q practice. result in in practice, the Bar making making De facto assignments de facto assignments gr Q[ judges Q Court. The !!.!! the Court. 25 procedure provided here allowsallows Q an unbiased review Q[ disqualification. review gr disqualification, 26 26

27 27 21 Ybanez decision, but proffers nothing 28 21 AAsingle single clause clauseininthe theResponse Responseacknowledges acknowledgesthethebirth birthofof the thebirth birth of of the the Ybanez more more by wayway ofofdiscussion discussion or distinction. Response at See Response distinction. See at p. ... and disqualification p. 33("("...and was denied in one matter, disqualification was i.e., People v. Richard People Richard K Y Ybanez, Ybanez. et al ., .• CF0447-23...."). CF0447-23 .... ").

People People v. v. Greg GregSanres, Sanres, Criminal Case No. No. CF0461-24 Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement ofObjection Statement of Objection77GCA GCA §§6107 6107 and Motion to and Motion to Disqualify Disqualify Page 17 of23 of23 11 permit automatic disqualification without the iudge but does not permit M 's having judge 's having grounds g met specific grounds Q[disqualification. 2

3 (emphasis added).

4 It incontrovertible that Cal Civ Pro It is incontrovertible Pro § 170.1 is not .1 is not identical identical to to Guam's Guam's statute. The Guam 5 judge recuse him or herself automatically where Legislature did not adopt the requirement that a judge 6 a lawyer in the proceeding spouse of the judge's spouse. proceeding is the former spouse of the spouse. A plain review of 7 statute would California statute glaring difference. would reveal this glaring 8

9 §§ 170.1. 170.1. Grounds Grounds forfor disqualification. disqualification. ((a)a) A A judge judge shall shall be disqualified if any one or more more ofof the following are the following the: ** ** ** are true: 10 or the spouse of (4) The judge, or judge, or ofthe judge, within the third degree or a person within 11 11 of of them, or either of of relationship to either spouse of or the spouse suchaa person ofsuch party to person isis aa party the proceeding or officer, director, or an officer, or trustee of director, or party. ofaa party. 12 12 (5) A lawyer or a spouse of a lawyer lawyer in in the proceeding is the proceeding spouse, is the spouse, former sibling, or former spouse, child, sibling, parent of the judge or or parent or the judge's the judge's 13 13 person is spouse or if such aa person associated in the is associated private practice of law the private 14 with a lawyer in the proceeding.

15 15 Cal. Civ. Proc. Code § 170.1 Proc. Code§ 170.1 (West) (emphasis added). 16 16 In contrast, Guam's In contrast, Guam's judicial judicial disqualification disqualification statute statute 77 GCA GCA §§6105(b)(5)(A) 6105(b)(5)(A) and and (B) reads: (B) reads: 17 (5) Where Where he he or or she sheor or his his or or her personwithin spouse,ororaaperson herspouse, the third within the third 18 18 degree of relationship to either spouse of such person: the spouse either of them, or the person: (A) (A) isis aa party party to to the proceeding, or an officer, director, or trustee of the proceeding, of 19 a party; party, 20 (B) is acting as aa lawyer proceeding; .... lawyer in the proceeding,

21 Code: "A lawyer or a paragraph (5) of the California Code: is paragraph statute is Guam's statute Not included in Guam's 22 22 spouse of former spouse, child, sibling, or parent of the of a lawyer in the proceeding is the spouse, former 23 judge or or the judge's or ifif such a person is associated in the private practice of law with a spouse or judge's spouse 24 24 25 lawyer lawyer in the proceeding." argue that To argue proceeding." To this is that this distinction, rather than a substantive is a procedural distinction, 25

26 26 erroneous; however, it does not change one, is erroneous, the fact change the that the Guam fact that Legislature rejected the Guam Legislature

27 27 automatic disqualification disqualification provisions where aa former spouse of the judge's provisions where appears as a spouse appears judge's spouse 28 28 lawyer in a proceeding before it. The OAG not provided has not OAG has any legal provided any authority to legal authority support a to support

People People v. Greg Greg Sarges, Sanres, Criminal Case No. No. CF0461-24 CF0461-24 Decision and Decision Order Denying and Order theOAG's Denying the OAG's Statement of Objection Statement of Objection 7 7 GCA GCA §§ 6107 and Motion 6107 and Motion to to Disqualify Disqualify Page 18 of23 18 of23 1 finding finding that that the Guam Guam Legislature Legislature intended intended to adopt adopt the the same same provisions prov1s10ns despite despite the clear clear 2 omission omission of ofthe the language language in in Section Section6105 6105.. 3 4. Under Underanan"objectively "objectivelyreasonable reasonable person" person" standard standard and and considering considering the American 4 Bar Association's Formal Opinion 488, Judge Tolentino Association's Formal Opinion 488, Judge Tolentino was was not not required required to to disqualify disqualify himself himselfin in this this case. case. 5

6 Finally, Finally, the the Court Court addresses the "objectively addresses the "objectively reasonable reasonableperson" person"standard standard requirement in

7 7 viewing the the disqualification disqualification question question in this case. case. The OAG OAGcorrectly correctlystates states the the legal legalstandard standard 8 applicable in determining whether a judge judge must must be be disqualified under under the theprovisions provisions of of Section 9 6105, 6105, quoting San San Agustin: Agustin: "A "Acourt courtshould shouldnot nothypothesize hypothesizeabout about what what the the reasonable reasonable person person 10

11 would believe believe about about a judge's all the judge's partiality given all the relevant relevant/acts facts in the controversy.... Under

12 12 this objective test, ... 'the court court asks whether aa person asks whether personwith with knowledge knowledge of of all the facts would

13 perceive perceive aa significant significant risk risk that that the judge will will resolve resolvethe thecase caseon onaabasis basis other than the merits.935 other than '" 14 14 Objection at p. 4 (quoting (quoting San San Agustin at1[,r 23) (emphasis Agustin at (emphasis added). added). Judge Tolentino's detailed Judge Tolentino's detailed 15

Answer provides provides relevant relevant facts facts establishing establishing that that no no close closepersonal personalrelationship relationship eydsts exists between 16 16

17 17 himself himself and Attorney Attorney General General Moylan, Moylan, nor nor between betweenJudge JudgeTolentino's Tolentino's wife wife and Mr. Moylan. and Mr. Moylan. The

18 OAG's OAG'sObjection Objectionand and Response Response only only declare, declare, without without citing citing specific specificfacts, facts, that that aa close close personal personal 19 . . . relationship exlsts relatlonshlp exists. 20 In In its its Formal Formal Opinion Opinion 488 488 (Sept. 5, 5, 2019), 2019), the the American American Bar Bar Association, Association, considering considering 21 22 judges' obligation obligation to disqualify disqualify themselves themselves in proceedings they have proceedings in which they have social social or close 22

23 23 personal relationships with with the lawyers lawyers or orparties parties other otherthan than aa spousal, spousal, domestic partner partner or other

24 24 close family relationship, looks to relationship, looks to Rule Rule 2.11 2.11 of of the the Model Code of of Judicial Conduct ("Model Judicial Conduct ("Model 25 Code") Code") requiring requiring disqualification disqualification "because "because their their impartiality impartiality might might reasonably reasonably be questioned." questioned." 26 ABA Formal Op. ABAFormal Op. 488 488 at 1 (Sept. 5, 2019) 2019) (citingN.Y. (citing Jud. Adv. Op. 11-125, Jud. Adv. 11-125, 2011 2011 WL 8333125 8333125 27

28 *4 *4 (Oct. (Oct. 27, 27, 2011). 2011). In In this this regard, the ABA ABA opined opinedthat that "Judges "Judges are are ordinarily in in the the best position

People v. v. Greg Sanres, Sanres, Criminal Case No. CF0461-24 CF0461-24 Decision Decision and Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of Objection 77 GCA GCA §§ 6107 6107 and Motion to and Motion to Disqualify Disqualify Page 19 of23 of23 l might reasonably be questioned when impartiality might whether their impartiality to assess whether or parties with lawyers or when lawyers 2 2 have re1ationships...appear they have whom they before them." relationships ... appear before Id. However, them." Id. the ABA notes However, the that "in notes that "in 3 communities and smaller communities relatively sparsely-populated and relatively judges may have social sparsely-populated judicial districts, judges 4 and personal contacts with lawyers and with lawyers parties that and parties are Unavoidable. that are circumstance, too unavoidable. In that circumstance, 5

66 strict strict aa disqualyication disqualification standard be impractical would be standard would to enforce impractical to and would potentially disrupt enforce and

77 The ABA also recognized added). The justice." Formal Op. 488 at 2 (emphasis added). ofjustice." the administration of 8 that over time relationships change "or may have "or may endedsufficiently have ended far in sufficientlyfar the past in the that it is not a past that 9 current concer n when viewed r ent concern objectively." Id. viewed objectively." "Finally, Id. "Fina must aavoid judges must lly, judges disqualifying void disqua lifying 10

111 themselves or too often lest litigants be encouraged to use disqualification motions as quickly or themselves too quickly

12 12 judge-shopping, or a means ofjudge-shopping, other judges in the same court...become overburdened." Id. or other

13 13 of San Agustin, wherein wherein the Guam Supreme Court Opinion tracks the rationale of The Formal Opinion 14 declared, "Our avoiding the appearance "Our recusal statute promotes fairness by avoiding of bias, but a party's appearance of party's 15 15 one-sided one-sided perception perception of of an Agustin at of bias is not grounds for disqualification." San Agustin an appearance of at 16 16

17 'H 25.The ,i 25. TheOAG OAG advances advances its Objection solely its Objection on a "familial relationship" and a claim by Chief solely on Chief ·

18 without any facts Prosecutor Rudolph that this relationship is "significant and continuing" without 19 19 presented to illustrate this condition. This this condition. is simply This is not enough. simply not 20 Adopting the recommendations the ABA ofthe recommendations of inits ABA in Formal Opinion its Formal 488, and, based on the Opinion 488, 21 22 objective reasonable and considering standard and reasonable person standard the Answer filed by Judge Tolentino and considering the 22 23 23 the judicial community communityand andthe the lack support provided of factual support lack of by the OAG, provided by well as the context OAG, as well

24 24 following findings: the following makes the the Court makes in which the disqualification is sought, the 25 1. Other Otherthan thanthe themere merefact ofa biological relationship between Attorney General Moylan fact of 26 and Judge Tolentino's Tolentino's stepchildren, any relationship of any stepchildren, there is no credible evidence of 27 27

28 28 -within within three three degrees degrees or or otherwise - between Mr. Moylan between Mr. Moylan and Judge Tolentino.

People People v. Greg Greg Sarges, Sanres, Criminal Case Case No. CF0461-24 CF0461-24 Decision and Order Denying Decision and Order Denying the the OAG's OAG's Statement Statement of of Objection Objection 7 GCA §§ 6107 7 GCA 6107 and Motion to and Motion to Disqualify Disqualify Page 20 of of23 1 2. The Thecircumstances circumstances since since October, October, 2022 2022 under disqualified Judge Tolentino disqualified which Judge under which 2 himself voluntarily voluntarily have have changed, no evidence there is no and there changed, and to contradict evidence to Judge contradict Judge 3 Tolentino's description Tolentino's description of the between Attorney meeting between the meeting GeneralMoylan, Attorney General theAAG's Moylan,the 4 staff, Judge Tolentino and court Judge Tolentino staff affirming courtstaff that any affirming that conflict relating to anyconflict the familial to the familial 5

6 6 association which Tolentino and Attorney General Judge Tolentino which previously existed between Judge

7 7 Moylan Moylan "no "no longer longer existed," required to disqualify not required Tolentino isis not Judge Tolentino therefore, Judge existed,"therefore, 8 himself himselfunder under Section Section 6105, 6105; 9 3. Neither Neither Judge Judge Tolentino Tolentino nor nor his his spouse the former (as the spouse (as of Attorney former wife of General Attorney General 10

111 Moylan) Moylan) are are within within the the third third degree of ofrelationship to any relationship to party to the proceeding nor any party

12 12 to anyone acting as a lawyer in the proceeding, as there is no authority cited by no legal authority

13 13 the OAG OAG which which affirms affirms aa relationship relationship within within three degrees after the termination of a three degrees 14 marriage, by affinity; marriage, which is a relationship by affinity , 15 15

4. Attorney AttorneyGeneral GeneralMoylan Moylanisisnot notaa"party" "party"totothe proceeding,but theproceeding, representative of but aa representative 16 16

17 the People of ofGuam Guam in matters brought in the in matters nameof the name the People of the Guam; People of Guam,

18 5. Attorney AttorneyGeneral GeneralMoylan Moylanand and Mrs. Mrs. Tolentino's childrenare Tolentino'schildren now grown are now adults living grown adults 19 19 on their their own, own, which significantchange poses aasignificant which poses relationships distancing changeininrelationships Judge distancing Judge 20 General Moylan; Tolentino from Attorney General Moylan, 21 6. There Thereisisno noevidence evidenceofofaa"close "closepersonal personalrelationship" betweenMr. relationship"between Moylanand Mr.Moylan Judge and Judge 22 22

23 Tolentino requiring requiring disqualification disqualification under or the 6105 or under Section 6105 Model Code; theModel Code,

24 7. In In this small legal community only of consistingonly benchconsisting court bench trial court with a trial and with Guam and in Guam community in of 25 four (4) 4) dedicated dedicated criminal court dockets, requiring Judge criminal court Tolentino, who is one of the JudgeTolentino, 26 26 four (4) (4) judges judges assigned assigned to to the the criminal criminal docket, disqualify himself to disqualify docket, to pursuant to himselfpursuant 27 27

28 Section Section 6105 from all cases in 6105 from in which Moylan represents which Attorney General Moylan the People represents the People

People People v. v. Greg Greg Sanres, Sanres, Criminal Criminal Case Case No. CF0461-24 Decision and Decision Order Denying and Order the OAG's Denying the OAG's Statement of Objection Statement of Objection 77 GCA GCA § § 6107 6107 and andMotion Motion to to Disqualify Disqualify Page 21 of23 Page 21 of23 1 of Guam of Guam would (a) be be impractical impractical to enforce, enforce, (b) (b) negatively negatively impact impact the the efficient efficient 2 administration of administration of justice, c) lead justice, and (c) leadtotojudge-shopping judge-shoppingand/or and/or overburden overburden other other 3 22 judges in the the same samecourt. court." 4 Having made made the following following findings, findings,the theCourt Courtkinds finds that that Judge Tolentino is not required Judge Tolentino 5

6 himself under to disqualify himself under Section Section 6105(a) 6105(a) and andrejects rejectsthe theOAG's OAG's Objection.

7 CONCLUSION 8 This Court This finds that Court finds thatJudge JudgeTolentino Tolentinoisisnot notdisqualified disqualifiedunder under7 7 GCA§§6105(b)(5)(A) GCA 6105(b)(5)(A) or or 9 (B)or (B) orCanon Canon 33 of ofthe the Model ModelCode Codefirm frompresiding presidingover this over thiscase caseononthe thegrounds groundsthat thathe he has has any any 10

111 familial association Attorney General association with Attorney General Moylan. Moylan. Notwithstanding Notwithstanding Attorney Attorney General GeneralMoylan's Moylan's

12 12 biological biologicalrelationship relationship to to Judge Tolentino's stepchildren Judge Tolentino's stepchildren and former marriage marriageto to Mrs. Mrs. Tolentino, Tolentino,

13 neither Judge JudgeTolentino Tolentino nor nor his hiswife wife are are related related within within three threedegrees degreesto toAttorney Attorney General General Moylan Moylan 14 either by affinity or or consanguinity, regardless of consanguinity, regardless of whether Mr. Mr. Moylan Moylan is is a party the litigation party to the 15 15 (which (which he he is is not) or or appearing appearing as a lawyer lawyer for a party. 16

17 17

19 19 22 Hz Indeed,the Indeed, thefiling filingbybythe theOAG OAG ofof over fifty (50) over fifty (50)identical identicalObjections ObjectionstotoJudgeJudge Tolentino's Tolentino'sassignment assignment in in criminal crimina 20 20 has had cases has had aa significant negative impactimpact on on the the caseload caseload of ofthe thethree threeremain'mg remaining dedicated dedicated criminal criminal courts. courts. For Fo example, example, asserted asserted speedy trial cases in which Judge Tolentino was Judge Tolentino was assigned assigned pursuant pursuant to tothe theAdministrative Administrative Rule were wer 21 21 reassigned reassigned to to other criminal due to judges due criminal judges to the the running runningof of the speedy trial clock. In speedy trial In CF270-24, CF270-24, People People v. v. Michael Michae Gregory Gregory Rosal, Rosal, this Court was assigned to take take the matter to to trial trial with only/ only four our days remaining on his speedy trial 22 22 clock. See. clock. See. Min. Aug.2,2,2024 Min.ofofAug. Hrg.atat9:22:26 2024Hrg. 9:22:26AM. AM.On On August August2,2,2024, 2024,despite despitethat thathethematter matterhadhad been been pending pendin before Judge before Judge Tolentino Tolentino since sinceMayMay24,24,2024, 2024,and and the Defendant having the Defendant having asserted asserted his his right right toto speedy speedy trial trial on onJune June 21, 23 2024, thethe People were unprepared unprepared for for trial trial and andfailed failed toto file tile any any witness witness lists lists by the Pre-trial Conference. Conference. On On August Augus 2, 2024, thethe People People filed filed aa Memorandum Supporting SupportingPeople'sPeople's Motion Motion to to Dismiss Dismiss Without Without Prejudice Prejudice in in the Interest of 24 24 andthe Justice and theCourt grantedthe Courtgranted dismissalbut thedismissal buthashasreserved reservedon onthe theissue issueof ofwhether whetherititwill will be be dismissed with or without withou prejudice. Id. TheTheCourt Courtexpresses expresses grave grave concern concern aboutabout whether these theseObjections Objectionshave havebeenbeenfiled filed by by the theOAGOAG in good 25 faith. In In at at least least one one case case assigned to this Court,People People of ofGuam Guam v. v. Prima Prima Sebastian, Sebastian, Criminal Case No. CF0506-24, Case No. CF0506-24 the Objection, Objection, filed filedon onJuly July29, 29, 2024, 2024, was pending this Court's Court's determination determination as recusaljudge recusal judge(see (seeNtc. Ntc. of Assignment Assignmen 26 ofRecusal Judge of (Jul. 31, Judge (Jul. 31,2024) 2024)andandCRI.1 CR1.1Form Form33(Aug. (Aug. 1,l, 2024)) when the Motion to People filed aa Motion the People to Dismiss Dismiss ono August 12, 12, 2024. Despite the 2024. Despite the August August 12,12, 2024 2024Motion Motion to to Dismiss, on August 13, 2024, 2024, thethe People People filed filed aa Response Respons 27 to Judge Tolentino's Answer. Judge Tolentino's Answer.OneOnemight mightcontemplate contemplatethat thatperhaps perhaps the assigned prosecutor prosecutorfiledfiled the the Motion Motion to Dismiss Dismis without Chief ChiefProsecutor Prosecutor Rudolph being aware of of the Motion when she the Motion filed the Response. she filed Response. However, However, ChiefChiefProsecutor Prosecuto 28 Rudolph filedfiled both both the Motionto the Motion toDismiss Dismisson onAugust August12, 12,2024, 2024,and andthe the Response Response on on August August 13, 13, 2024. 2024. Magistrate Magistrat Judge JonathanQuan Judge Jonathan Quangranted grantedthethe MotiontotoDismiss Motion Dismisson August13, onAugust 13,2024. 2024.OrderOrder(Re: (Re:Dismissal Dismissal Without Without Prejudice Prejudice) (Aug. (Aug. 13,13, 2024).

People People v. Greg Greg Sarges, Sanres, Criminal Case No. CF0461-24 Case No. CF0461-24 Decision and Decision Order Denying and Order Denying the theOAG's OAG's Statement of Objection Statement of 7 GCA Objection 7 GCA §§ 6107 and Motion 6107 and Motion to to Disqualify Disqualify Page 22 of of23 1 the OAG's herein, the stated herein, For the reasons stated Motion to Disqualify Objection and Motion of Objection Statement of OAG's Statement 2 is REJECTED and the Motion is DENIED. This is DENIED. case shall This case returned to Judge Tolentino shall be returned for Tolentino for 3 further disposition. 4 SO ORDERED day of August, 2024. ORDERED this 29th day 5

6 6

7 7

8 ON LE MARIA T. CENZON Judge, Superior Court of Guam Judge, 9

12 12

13 13

19 SERVICE VIA SERVICE VIA E-MAIL E-MAIL 20 acknowledge that an I acknowledge origin.JI!las origin emailed to: wasemailed 21 s , 1/ , fyc i1"iG »>.rc

Datez9»2 Time!27%' Dat;iJ'l-:J,Time.f:?~ 22 If· .u c-4 W tl--'t !kpufy Oerk, Superior Court of Guam Deputy Clerk,Superior Court of Guam

People v. v. Greg Sarges Sanres,, Criminal Criminal Case No.No. CF0461-24 CF0461-24 Dec is Decision and Order Denying and Order Deny t OAG's the OA G's SStatement of of Objection Objec t ion 77 GCA GCA §§ 6107 6107 and and Motion Mot t Disqualify to Dis Page 23 23 of23 of