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

27

28

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

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).

26

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

23

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

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

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

26

27

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

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

25

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

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

26

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

oftwentytwenty

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

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

23

24

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

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

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

21

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

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.

18

19

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

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

27

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

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

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

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

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

18

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

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

10

11

12 12

13 13

14

15

16

17

18

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

23

24

25

26

27

28

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