.i 8,
J
FI l ED
CLERK CLERK OF
OF GQURT
COURT
1
1
2
2
2021, m; 29 202~ AUG 29 PFD' 3: 13 (} PM 3:
<2 v l ll
3 SUPERIOR COURTC3/'"
OF GUi.\J\11
"8.Et.' !l;§ ,€`1&_@
| .=»i~.,.»=;f*§!=3'l
4
5
IN THE SUPERIOR COURT
COURT OF
OF GUAM
GUAM
6
7 PEOPLE OF GUAM,
GUAM, Criminal CriminalCase
CaseNo.
No. CF0435-24
CF0435-24
GPD Report
Report No.
No. 24-14871
24-14871 P
8
v.
9 DECISION AND ORDER FRANKIE FRANKIE LEON
LEON GUERRERO
GUERRERO SANTOS,
SANTOS, JR.,
JR., DENYING THE OAG'S
10
10 DOB: 10/13/1976
DOB: 10/13/1976 STATEMENT OF OBJECTION 77 G.C.A.
G.C.A. §§ 6107
6107 & MOTION TO
& MOTION TO
11
11
Defendant. Defendant. DISQUALIFY
12
12
13
13 INTRODUCTION 14 This matter is is before
before the
the Honorable
Honorable Alberto
Alberto C.
C. Lamorena,
Lamorena, III
III upon the
the Office
Office of the Attorney
15
15 Ge al's (the
General's "OA G's ") State (the "OAG's") m
Statement of Ob G.C.A §§ 66107 Objection 7 G.C.A. 1 & Motion Motion toto Dis qu alify (the Disqualify (the
16
16 "Objection").
"Ob The OAG
OAGob
objects to the
je c ts to the Honor
Honorable
ab Alberto
Alb er E. Tolentino's ("Jud E. Tolentino's ("Judge Tolentino's")
Tole ntino's ")
17
17 competency
competency to
to preside over
over the
the above-captioned
above-captioned matter under under 77 G.C.A.
G.C.A. § 6107.
6107.
18
18 Having considered Having considered the Objection, ObjectiOn, Judge
JudgeTolentino's
Tolentino's Answer,
Answer, the
the OAG's Response, as
OAG's Response, as well as as
19
19 statutes and the applicable statutes and case case law
law and
and all
all relevant
relevant portions of Court now issues of the record, this Court issues the 20 Decision and following Decision and Order Order DENYING the OAG's
OAG'srequest
request to
to disqualify
disqualify Judge
Judge Tolentino
Tolentino and
and
21 reassign this case.
reassign
22
22 BACKGROUND
23 Defendant is charged with Possession of ofaa Schedule
Schedule IIII Controlled
ControlledSubstance
Substance (as 3rd Degree (as aa 3rd Degree
24 Felony)
Felony)after
afterpolice
policeallegedly found
allegedly foundmethamphetamine methamphetamineduring
duringaa search of his vehicle.
search of vehicle. See Indictment
25 (Jul. 12, 2024).
12, 2024).
26 Judge Tolentino was subsequently Judge Tolentino assigned to subsequently assigned to preside preside over this criminal case. See Notice of
27 Judge
JudgeAssignment
Assignment(Jun.
(Jun. 27,
27, 2024).
2024).
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement
Statement of
of Objection
Objection77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24, People of
of Guam v. Frankie
v. Frankie Leon Guerrero Santos Jr.
Guerrero Santos Jr.
Page 1 of 11
ofll
'D
¢
1
1
1 On July
On July 19, 2024,the
19, 2024, theOAG
OAG filed
filed their
their Statement
Statementof
ofObjection
Objection77G.C.A.
G.C.A. §§ 6107
6107 &
& Motion
Motion to
to
2 Disqualify.
Oisqualify. The
TheOAG
OAGseeks
seeksJudge
Judge Tolentino's
Tolentino'sdisqualification disqualification on
on the following
following grounds:
grounds:
3 •
• Judge Tolentino's established Judge Tolentino's history of disqualifying himself established history himself from from matters
matters in
in which
4 Doug Moylan Moylan appeared
appeared as
as private
private counsel,
counsel, prevents
prevents Judge Toler from Judge Tolento from handling handling
5 matters involving the matters involving the OAG.now OAG now that
that Doug
Doug Moylan
Moylancurrently
currently serves
serves as
as the
the elected
elected
6 Attorney General of of Guam.
Guam.
7 •
• JudgeTolentino's
Judge Tolentino's personal relationship with with Attorney
Attorney General
General Moylan
Moylannecessitates
necessitates his
8 disqualification disqualification in mattersinvolving in matters involving the OAG.
OAG. Judge
Judge Tolentino
Tolentinoisis manned to Attorney married to Attorney
9 General General Moylan's ex-wife. and and Attorney
Attorney GeNeral
General Moylan is the
the father
father of
ofJudge
Judge
10 10 Tolentino's step-children.
Tolentino's step-children.
11 11 See Objection Objection at
at 2 (Jul. 19, 2024).
2024).
12 12 On July 29, On July 29,2024,
2024,Judge
JudgeTolentino filedhis
Tolentinofiled hisAnswer AnswertotoObjection
Obj action("Answer").
("Answer"). In
Inhis
his response,
response,
13 13 Judge Tolentino challenges the timeliness challenges the timelinessof of the
the OAG's
OAG's Objection.
Objection. See Answer at ,r 11ll (Jul.
at 11 (Jul. 29,
14 14 2024).
024). Judge
JudgeTolentino
Tolentinoalso
alsomade
madethe
the following
followingresponses,
responses,under
under penalty
penalty of
ofperjury,
perjury, which
which the
the Court
15 15 finds findsparticularly
particularlyrelevant
relevant in
in its
its recusal
recusal determination:
determination:
16 16 • ,rii 6. That • ThatatatMr.
Mr.Moylan's
Moylan'srequest,
request,aameeting
meetingbetween
betweenhim
himand
andthe
theundersigned,
undersigned, the
undersigned's chamberstaff, undersigned's chamber staff,the the Administrator
Administratorofof the
the Courts,
Courts, and
and Mr.
Mr. Moylan's
17 17 transition chairperson,
chairperson,Mr.
Mr.Wilfred
Wilfred Aflague, occurred in December 2022.
Aflague, occurred in December 2022.
18 18 • 117. • ,r 7. That
That at this meeting, Mr, Mr. Moylan
Moylanassured
assuredme
meand
and the
the other
other members
members in
in attendance
19 that he heperceived
perceived no conflict
conflict in
in his
his election
electionaSas the Attorney Attorney General
General and
and the prosecution
of of criminal
criminal cases
cases before
before the
theundersigned.
undersigned. It was was agreed agreed that
that the
thecircumstances
circumstances
20 underlying my recusal mattersthat recusal in matters thatMr.
Mr.Moylan
Moylan was
was aa lawyer
lawyer no
no longer existed, to
21 wit: that that during my term
term as the Magistrate
Magistrate Judge
Judge and asaSaaJudge
JudgeI Ihad
hadroutinely
routinelyrecused
reused
myself myself from
from all
all matters
matters where Mr. Moylan
Moylan waswas the
the attorney
attorney of aa party before me on 22 the basis that that he
he was the
the father
father of mymy minor step-children and minor step-children and that that the minor stepstep
-
children children were
were members
members ofofand
and resided
resided in
in the household maintained by by me me and
andmymywife
wife
23 and that that as
asof
of even date,
date, both step-children have now reached majority and adulthood majority and
24 and have been residing at their own own residences in in Guam and and inin the
the U.S.
U.S. Mainland.
25 25 • 118.
• ,r 8. · ;That
ThatMr.
Mr.Moylan
Moylan never
never made an appearance
appearance as
asaalawyer
lawyer in this case.
26 • 1114. • ,r 14. That
Thatmy
mywife
wife Doris
Doris L.G. Tolentino and Attorney General and Attorney General Moylan Moylan were divorced
27 on June 13,1997, June 13, 1997,andandthat thathere
therewere
weretwo
twominor
minorchildren
childrenat
atthe
thetime
timeof
of the
the dissolution
dissolution
ofmaniage, of marriage,totowit:
wit:Brandon
Brandon(born
(born 1990)
1990) and Angela (born
and Angela (born 1992).
1992).
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement
Statementof of Objection
Objection77G.C.A.
G.C.A.§§.6107
6107 &&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People CF0435-24, People of
ofGuam v. Frankie Leon v. Frankie Leon Guerrero Guerrero Santos Jr.
Santos Jr.
Page :Page 22ofH
of ll
T I
11 ,i 17.
• 1] 17. II have
have never and my wife Moylan and
observed Mr. Moylan
never observed in any involved in
wife involved sense in coany sense
parenting the children of their marriage of their as the children marriage as been raised and provided children have been provided 2 with and protection and
with protection care to ensure their healthy development their healthy development into adulthood, primarily adulthood, primarily
by my wife
wifeand and that
me,and
andme, at present they are that at in fact are in adults able
fact adults to conduct able to and make conduct and
3 their own decisions inlife.
decisions in life. , 4 • ,i 18. That based • 1118. thefact averments,the
foregoing averments,
theforegoing
uponthe
basedupon thatAttorney factthat General Moylan Attorney General Moylan
5 is the the biological provides no stepchildren provides
undersigned's stepchildren theundersigned's
ofthe
father of
biological father basis for no basis
disqualification disqualification under
under 7 G.C.A. 6105(b) or that 7 G. C.A. § 6105(b) or that the undersigned's "impartiality might "impartiality might
6 reasonably be questioned" as required under as required subsection (a).
under subsection
7 • ,i 19. • 1] 19. That
That "[u]nder "actual bias", but "the matters is not "actual
what matters
6105(a), what
subsection 6105(a),
"[u]ndersubsection
8 appearance of appearance of bias." ,i Dox at 'll 32 (citingDizon v. Super. Ct. (People), Van Dox
bias." Van at 32 (citing Dizon v. Super. Ct. 1998 Guam (People), 1998
,i 10 3 11 10n.3). appearance of n.3). The appearance the standard from the
of bias is judged from "reasonable standard of aa "reasonable 9 person" who
who knows the facts, all the
knows all and understands facts, and the "contents understands the the jurisdictions, "contents of the
10 10 parties, and parties, controversiesinvolved,"
and controversies such "realities including such
involved," including of the "realities of Guam judicial the Guam
system" as relativelysmall as the relatively number of small number oflawyers inthe lawyersin Guam bar
the Guam nature of bar and "the nature of 11 11 Guam families." (citation omitted).
families." Id. (citation
12 12 • ,r 30. • 1] 30. My
My wife twenty-seven years to twenty-seven
closeto
for close
divorced for
been divorced
havebeen
Moylanhave
Mr. Moylan
and Mr.
wifeand years 13 13 and that thatthe childrenof
thechildren oftheir manage are adults theirmarriage living on their own and adults living well over the and well
age of
ofmajority
majorityandandthat
that no
no reasonable who knows person who
reasonable person allthe knows all factsand
thefacts understands andunderstands
14 14 controversies involved andcontroversies
jurisdiction, parties and of the jurisdiction,
the contents of the Guamjudicial in the
involved in judicial system that there conclude that
would conclude
system would exists an there exists appearance of an appearance bias requiring of bias my
requiring my
15 disqualification in this disqualification in matter.
this matter.
16 16 Id. 17 17 On 12, 2024, On August 12, the OAG 2024, the filed their OAG filed to Judge their Response to Tolentino's Answer JudgeTolentino's
18 18 ("Response"). The ("Response"). OAG
TheOAG assertstheir
asserts Objectionwas theirObjection timelyfiled, wastimely beingfiled filed,being just three filedjust weeks three (3) weeks
19 19 Judge Tolentino'.s
after Judge at 1-3 assignment. See Response at Tolentinofs initial assignment. (Aug. 12, 1-3(Aug. 2024). The OAG 12,2024). also
OAG also
20 that Judge
expands on their argument that Tolentino is biased per se, arguing that Judge Tolentino's JudgeTolentino Tolentino'
21 Attorney General
personal relationship with Attorney Moylanhas General Moylan notsubstantially hasnot changed and substantially changed continues to and continues
22 provide aa basis for his disqualification. Id. at 3-6. provide
23 On 2014, this Court was assigned to On July 30, 2014, addressthe to address Objection. See Notice of theObjection.
24 Assignment of
ofRecusal Judge (Jul. 30, 2024).
Recusal Judge 2024).
25 DISCUSSION D1Sc0ss1on
26 I. The
The Law
Law Governing
GoverningJudicial Disqualification:
JudicialDisqualiiicationz 27
28
Decision Decision and Order Denying and Order Denying the
theOAG's
OAG's Statement
StatementofofObjection
Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
Motionto
toDisqualify
Disqualify
CF0435-24, People of
ofGuam v.v. Frankie Santos Jr.
Frankie Leon Guerrero Santos Jr.
Page 33 ofll
of 11
*
1 Judicial disqualifications are Judicial disqualifications are governed governed by
by the
the substantive
substantiverules
rulesof
of 77 G.C.A.
G.C.A. §§ 6105
6105 and
and the
the
2 2 procedural rocedural rules off G.C.A.
rules of7 G.C.A.§§6106
§§ 6106and6107.
and 6107.Section
Section6105
6105defines
definesthe
thegrounds
grounds for
for disqualifications
disqualifications
3 ass follows:
follows:
4 (a) Any AnyJudge
Judgeshall
shalldisqualify
disqualifyhimself
himselfororherself
herselfin
inany
anyproceeding
proceedingin
in which
which his
his or
or her
impartiality might reasonably reasonably bebe questioned, questioned,but
butif,if, following
following complete
complete disclosure
disclosure to
5 all parties parties in the proceeding proceeding of of the
the reasons
reasons for
for disqualification,
disqualification, all parties parties agree to
having the Judge continue to Judge continue to sit in the proceedings, proceedings, he he or she she need not disqualify
disqualify
6 himself or herself. himself herself.
7 (b) (b) AAJudge
Judgeshall
shallalso
also disqualify
disqualifyhimself
himselfororherself
herselfininthe
the following
followingcircumstances,
circumstances, but
8 if, if, following
followingcomplete
completedisclosure
disclosuretotoall
allparties
parties in
inthe
the proceeding
proceeding ofofthe
the reasons
reasons for
for his
or her
her disqualification, all parties agree disqualification, all agree to having the Judge continue the Judge continue to to sit in the 9 proceedings, he or sheshe need need not
notdisqualify
disqualify himself
himself or herself:
herself:
10 (1) Where
Whereheheororshe
shehas
hasaapersonal
personalbias
bias or
orprejudice
prejudice concerning
concerning aa party,
party, or
11 personal personal knowledge of of disputed disputed evidentiary facts concerning the proceeding;
proceeding,
12 (2) Where
Whereininprivate
privatepractice
practiceheheor
orshe
sheserved
served as
as aa lawyer
lawyer in
in the
the matter
matter in
13 controversy, or a lawyer lawyer with
with whom
whom he oror she previously practiced law served during such association during such associationas as aa lawyer
lawyer or either
either has
has been
been aa material
material witness
witness
14 14 concerning the matter;
matter,
15 15 (3) Where Whereheheororshe
shehas
hasserved
servediningovernmental
governmentalemployment
employment andand in
in such
such
16 capacity participated
participated asas counsel, counsel, advisor
advisor or material
material witness concerning concerning the
proceeding proceeding or, as such government government employee,
employee, expressed
expressed an
an official
official opinion
17 concerning the merits ofof the particular matter matter in
in controversy;
controversy,
18 (4)
(4) Where
Wherehe heororshe
sheknows
knowsthat
that he
he or
or she,
she, individually
individually or or as
as a fiduciary, or
or his
or her spouse
spouse or minor child child residing residing in
in his
his or
or her household,
her household, has has a financial 19 19 interest in the subject matter in controversy or or is is aa party
party to
to the
the subject
subject matter
matter
20 in in controversy
controversy or
or is
is aa party
party to the
the proceeding,
proceeding, oror in
in any
any other
other interest
interest that could
be substantially affected by the outcome of substantially affected of the proceeding;
proceeding,
21 (5) (5) Where
Whereheheororshe
she or
orhis
his or
orher
her spouse,
spouse, or a person within within the
the third
third degree
degree of
of
22 relationship to either
either of
ofthem,
them, or
or the
the spouse
spouse of
ofsuch
such person:
person:
23 (A) (A)isisa aparty
partytotothe
theproceeding,
proceeding, or
oran
an officer,
officer, director,
director, or
or trustee
trustee of a
24 24 party;
party,
(B) (B)isis acting
acting asas aa lawyer
lawyer in
in the proceeding;
proceeding,
25 25 (C)
(C)isisknown
knownby bythetheJudge
Judge to
to have
haveanan interest
interest that
that could
could be substantially
26 affected affected by the outcome of the proceeding;
proceeding,
(D) (D) isis to
to the
the Judge's
Judge's knowledge
knowledge likely
likelytoto be
beaa material
material witness
witness inin the
27 27 proceeding.
28 See 7 G.c.A. §§ 6105.
7 G.C.A. 6105.
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement
Statement of
of Objection
Objection77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People CF0435-24, People of
ofGuam
Guam v. Frankie
Frankie Leon
Leon Guerrero
Guerrero Santos Jr.
Santos Jr.
Page 4 ofll
f 11
1I Section Section 6106
6106 compels
compels aa judge
judge to
to disclose
disclose aa disqualification disqualification listed
listedunder
under§§ 6105
6105:
2 Whenever a Justice or Judge shall have knowledge Whenever knowledge of of any any fact
fact or
or facts which, under
provisions of
the provisions of 6105
I of of this Chapter, disqualify disqualify him
him or or her
her to
to sit
sit or
or act as such in any
3 action or proceeding pending before him him or or her,
her, itit shall be his or her duty to declare 4 the same in open court and cause a memorandum memorandum thereofthereof to be entered in the minutes.
It shall be the duty of the clerk to transmit forthwith forthwith aa copy
copy of
of such
such memorandum
memorandum to
5 each party or his his or
or her
her attorney
attorney who
who shall have
have appeared in such action action or or proceeding,
proceeding,
except such parties as as are are presented
presented in person or by attorney when the declaration is 6 made. 7 7 See 77 G.C.A.
G.C.A. §§ 6106.
6106.
8 If aa judge If judge fails
fails to
to disclose
disclose aa disqualifying disqualifying factor under §§ 6105, factor under then any 6105, then party to
any party to the
the action
action who
who
9 as appeared 10 has appeared in in the the case
case may
may raise
raise the objection to
the objection to competency.
competency. In Inthis
this regard,
regard, §§ 6107
6107 provides
provides as
as
10 11 11 follows:
follows:
12 Whenever a Justice or Judge who who shall shall be
be disqualified
disqualified under
under the provisions
provisions of
of this
Chapter to
to sit or act
act as
as such
such in
in any action
action or proceeding
proceeding pending
pending before him or her 13 neglects or fails to declare his or her disqualification fails to disqualification inin the the manner
manner provided by this
Chapter, any party to to such such action
action or
or proceeding
proceeding whowho has appeared therein may present 14 14 to the court and file
file with
with the clerk a written statement objecting to the hearing of of such 15 15 matter or any trial of any issue of fact or or law law in
in such
such action
action or
or proceeding
proceeding before such
Justice Justice or Judge,
Judge, and setting forth forth the fact or facts constituting ground of the the ground
facts constituting the
16 16 disqualification disqualification of of such such Justice
Justice or
or Judge.
Judge. Copies
Copies of of such
such written
written statement
statement shall
shall
forthwith be served by the presenting party on each party, presenting party on each party, or his or her attorney, who 17 17 has appeared in the action or proceeding and on the Justice or Judge alleged in such 18 18 statement to be disqualified.
19 19 Within ten (10) days after the service of statement as above provided, or of such statement or ten (10)
days after the filing
tiling of
of any statement, whichever whichever is later in time, the Justice or Judge 20 alleged therein to be disqualified may file with the clerk his or her consent in writing 21 proceeding continue without him or her, or may file with the clerk that the action or proceeding his or her written answer admitting or denying any any or or all of
of the allegations contained 22 in such statement statement and setting setting forth any additional fact or facts material or relevant to forth any additional fact or facts the question ofof his or her disqualification. The clerk shall forthwith transmit a copy of 23 the Justice's or Judge's consent consent or answer
answer to each party or his or her attorney who shall 24 have appeared in such action or proceeding. Every such statement and every answer shall shall be verified
verified in the
the manner
manner prescribed
prescribed for
for the
the verification
verification of of pleadings.
pleadings. T he
25 statement statement of a party objecting to party objecting to the the Justice
Justice or
or Judge
Judge onon the ground
ground of his or her
disqualification disqualification shall
shall be
be presented
presented at
at the
the earliest
earliest practicable
practicable opportunity
opportunity after
after his or her
26 appearance and discovery discovery ofof the facts constituting constituting the ground
ground of of the Justice's or Judge's disqualification, and in any event event before
before the
the commencement
commencement of ofthe the hearing
hearing of
of any issue
27 of of fact in the action or proceeding proceeding before such Justice or Judge.
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement of Objection Statement of Objection 77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People
People of
ofGuam
Guam v. Frankie Leon
v. Frankie Leon Guerrero
Guerrero Santos Jr.
Santos Jr.
Page S of 11
5 ofll
1 No Justice No Justice or
or Judge who shall
shall deny his or
or her qualification
qualification shall hearer or pass
pass upon
upon the
the
question of question or her
of his or her own
own disqualification,
disqualification, but
but in every case
case the question of the
question of the
2 Justice's or or Judge's
Judge'sdisqualification
disqualification shall be heard and determined determined by some other
other Judge.
Judge.
3 The Presiding Judge, The Presiding Judge, or or next
next senior
senior Judge,
Judge, if
if it is the
the Presiding
Presiding Judge's
Judge's disqualification
disqualification
that is being
being requested,
requested, shall
shallmake
make such
suchassignment
assignmentwithinwithinfive five ((5)
5) days
days after
after receiving
receiving
4 from the from the clerk
clerk the
the notice
notice that
that the statement
statement of of disqualification has been filed. In been filed. In the
the
of aa Justice's
case of Justice's disqualification, the matter shallshall be heard by the Supreme Supreme Court
Court
5 constituted without the questioned without the questioned Justice.
Justice. .
t'
6 If such Judge admits his or her disqualification, or files his or her written consent that 7 the action or proceeding be tried before before another Judge, or fails fails to
to file
file the
the answer
answer within
within
the ten (10) days allowed, or if it shall be determined after the hearing that he or she is 8 disqualified, the action or proceeding shall be heard and determined by another Judge of of the Superior Court who is not disqualified. Such other Judge shall be assigned in the 9 same manner as the Judge whowho was was disqualified was assigned to hear hear the
the case
case initially.
initially.
10 10 See 7 G.C.A.
G.C.A. §§ 6107.
6107.
11 11 II. 11. The Objection Objection is procedurally procedurally sound,
sound, being
being timely
timely filed
filed at
at the
the earliest
earliest practicable
practicable
12 12 opportunity and prior to any hearing before Judge Tolentino.
13 13 The Court will first address the procedural procedural issue
issue of
of whether
whether the
the OAG's
OAG's Objection was timely 14 14 filed. Judge Judge Tolentino
Tolentino initially
initiallyraised
raised the
the issue
issue of
of timeliness,
timeliness, stating
stating "that
"that neither
neither Mr. Moylan nor the 15 15
16 Office Office of ofthe
the Attorney
Attorney General
General had
had ever
ever challenged
challenged or
or objected
objected to me
me presiding
presiding over this case until
17 the he instant instant Statement Statement of
of Objection and Motion to disqualify." See Answer Answer at ,r (Jul.
at 119 (Jul. 29, 2024).
18 18 Where Where aa judge
judge neglects
neglects or fails to
or fails disclose his
to disclose his disqualification disqualification mandated mandated under
under§ 6105,
6105, §§ 6107
6107
19 provides that "any party to such action or proceeding who has appeared ppeered therein
therein may present to the 20 21 court courtand and file
file with
withthe
theclerk
clerkaa written
writtenstatement
statementobi
objecting to the hearing of of such matter or any trial of 21 ' .
22 any anyissue issueof offact
fact or
or law
law ininsuch
suchaction
actionor
orproceeding
proceeding before
before such
such Justice
Justice or
or Judge,
Judge, and setting forth
23 the hefact factor orfacts
facts constituting
constitutingthe
the ground
ground of
ofthe
the disqualification
disqualificationof
ofsuch
such Justice
Justice or
or Judge. Copies of
of such
24 written 24 rittenstatement statementshall
shallforthwith
forthwithbe
beserved
servedby thepresenting
bythe presentingparty
partyon
oneach
each party,
party, or
or his
his or
or her attorney,
25 who has appeared in the action or proceeding proceeding and
and on
on the
the Justice
Justice or
or Judge
Judge alleged
alleged in
in such
such statement.to
statementto
26 ` .
be disqualified." See 77 G.C.A.
G.C.A. §§ 61,07.
6107.
27 1 J
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement of Objection Statement of Objection 77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People CF0435-24, People of
ofGuam v. Frankie
Frankie Leon Guerrero
Guerrero Santos
Santos Jr.
Page 6 ofll
of 11
11 Importantly, Importantly, §§ 6107 mandates that 6107 mandates that "the
"the statement
statement of
of aa party
party objecting
objecting to
to the
the Justice
Justice or
or Judge
Judge
\
2 on 2 on the the ground ground of
of his or her
her disqualification shall shall be at the be presented at the earliest earliestpracticable
practicable opportunity
3-
ifter his 8' after his or or her
herappearance
appearance andand discovery ofthe discovery of the facts constituting constituting the
the ground
ground of
ofthe
the Justice's
Justice's or
or
4 ; Judge's udge 'sdisqualy'ication, disqualification,and
andinane
in anyevent
eventbefore
beforeire
thecommencement
commencementofofthethe nearing hearingof
ofany
any issue
issue of fact
offact
5 6 ininthe the action action or
or proceeding before
before such Justice or Judge."
Judge." Id. (emphasis
(emphasis added).
added). The
The Guam
Guam Supreme
Supreme
6 7 Court Court has has confirmed
confirmed that
that statements
statements of
of objection
objection shall
shall "be
"bepresented
presented at
at the
the earliest
earliest practicable
practicable
opportunity after ... 8 opportunity ... discovery discovery of
of the facts constituting the ground for for disqualification."
disqualification." See Van Van Dox
99 .V. Super Ct., 2008 Guam 7 if 1]44.
44.
10 "A palty's "A party'sfailure
failure to
to comply
complywith
withany
anyof
ofthese
theserequirements
requirements constitutes
constitutes sufficient
sufficient grounds to
11 11 _ strike or disregard the 1 strike the statement statementof
of objection."
objection." See People
People v.
v. Johnny,
Johnny, 2006 Guam 10 ,r 11.
10 1] 11. Thus,
Thus,
12 "withrespect 13 "with respectotothe thestatutory
statutory provision
provisionrequiring
requiringthat
that disqualification
disqualificationbe
be urged
urged at the 'earliest
at the 'earliest practical practical
13 \
14 opportunity,'
opportunity,' the the intention
intention is
is 'clear
'clear that
that failure
failure totocomply
comply with
withthe
the provision
provision constitutes
constitutes aa waiver."'
waiver. ala
1
15 15 See Van Dox Dex v. Super if 44 (quoting Ct., 2008 Guam 7 1144
Super Ct., (quoting Caminegti Caminefti v.v. Pac.
Pac. Mut.
Mai. Ins.
Ins. Co.
Co. of Cal., 139
139
16 16 P.2d .2d 930, 930, 933 933 (Cal.
(Cal. 1943)
1943) (emphasis
(emphasis added)).
added)). The
The Guam
Guam Supreme
Supreme Court applied
applied this
this "silence-as-
"silence-as-
17 waiver rule"
rule" in San Union, Inc. v.
Union, Inc. Arnold, "to avoid v. Arnold, avoid the
the possibility
possibility of"1ying
of 'lying in
in wake,
wake, raising
raising the
18 18 ecusal issue 19 recusal issue only only after
after learning
learning the
thecoull's
court's ruling
ruling on the
the merits."' See San Union, Inc.
Inc. v.
v. Arnold,
19 20 017Guam 20 2017 Guam10 101127 ,r
27 (quoting Phillzps
Phillips v.
v. Amoco
Amoco Oil
Oil Co., 799 F.2d 1464, 1472 (11 1464, 1472 th
(nth Cir. 1986).
1986).
21 However, a finding However, finding of timeliness timeliness "should be 'construed liberally' to to promote justice." See
promote justic~."
22 Van 22 Van Dox Dox v.v. Super Super Cr., ,r (quoting Eagle Maint.
Ct., 2008 Guam 77 1145 Mains. & Supply Supply Co.
Co. v.
v. Super.
Super. Co.,
Ct., 16
16
23 - . -
Cal.Rptr. 745, Ca1.Rptr. 745,747 747(Dist.Ct.App.
(Dist.Ct.App. 1961)).
1961)). A
A timely
timely statement of objection is made "prior "prior to
to any
any hearing
hearing
24 ,r 46.
before the challenged judge in the matter." Id. at 1146.
25 26 Here, Judge Tolentino was assigned to this matter only three (3) weeks before thethe OAG OAG filed
tiled
26 heir Objection.
27 their Objection. See Notice of Judge Assignment Assignment (Jun. 27, 2024);
2024), Objection (Jul.
(Jul. 19,
19, 2024).
2024). During
27 that timeframe, Judge Tolentino did not preside preside over
over any
any hearings or make
make any decisions concerning concerning
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement of Objection Statement of Objection77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People
People of
ofGuam v.v. Frankie
Frankie Leon Guerrero
Guerrero Santos
Santos Jr.
Jr.
Page 7 ofll
of 11 - I
his case.
11 this case. This Thisleft
lefthe
theOAG
OAGnonoearlier opportunitytotoraise earlieropportunity raisethe the issue
issue of
ofdisqualification
disqualification to
to the
the Court.
Court.
2 While ileparties partiesmust
mustpresent
present statements of objection statements of objection "at "at the
the earliest
earliest practicable opportunity after his or 3 her er appearance and discovery appearance and discovery of of the
the facts
facts constituting.
constituting the ground
ground of
ofthe
the Justice's
Justice's or
or Judge's
Judge's
4 disqualification", disqualification", they they must
must be
be afforded
afforded that opportunity in the first place. See 7 that opportunity 7 G.C.A.
G.C.A. §§ 6107.
6107.
5 Three hree weeks weeks isis sufficiently
sufficientlywithin
withinthe
the "earliest
"earliest practicable
practicable opportunity"
opportunity" window, especially especially since
since
6 there here were were no
no hearings
hearings before
before the
the challenged
challenged judge
judge in
in the
the interim. Id. Therefore, the Objection Objection was
7 timely imelyfiled filedand
andprocedurally
procedurally sound.
sound.
8 111.
III. The Objection The Objection is
is substantially
substantially defective
defective because:
because:
9 a. Jude Jude Tolentino
Tolentino isis not
notcompelled
compelled totodisclose
disclose his
his personal
personal connection to Attorney connection to
l0 10 General General Moylan
Moylan under
under the
the clear
clear language of 77 G.C.A.
language of G.C.A. §§
§§ 6105
6105 and
and 6106.
6106.
l11l The only The only circumstance in §§ 6105 circumstance in 6105 requiring requiring disqualification (absent aa waiver disqualification (absent waiver following following
12 disclosure) 12 disclosure) involving involvingthe judge's spouse the.judge's spouse is
is§ 6105(b)(5)
6105(b)(5)when the spouse whenthe is any
spouse is any of:
of: (A)
(A) aaparty
party to
to the
the
13 13 proceeding, officer, director, or trustee roceeding, or an officer, trusteeof of aaparty;
party,(B)
(B) acting
acting as
as aa lawyer
lawyer in
in the
theproceeding;
proceeding,(C)
(C)
14 1; known ownby bythe
theJudge
Judgetotohave
havean
aninterest
interest that
that could
could be
be substantially
substantially affected by the outcome of the the
15 16 proceeding, roceeding; or or(D)
(D)isistotothe
theJudge's
Judge's knowledge
knowledgelikely.to
likely. tobe
beaamaterial
materialwitness
witness in
in the
the proceeding. See
16 17 17 77 G.C.A.
G.C.A. §§ 6105(b)(5).
6l05(b)(5).
*
18 18 JudgeTolentino's Judge Tolentino's spouse is not a party party to
to the
the proceeding,
proceeding, or
or an
anofficer,
officer, director, or
or trustee of
trustee of
19 aaparty. 19 party. She Sheisisnot
notacting
actingas
as aa lawyer
lawyerin
inthe
the proceeding,
proceeding, nor
nor is
is she
she known
known by Judge Tolentino to have Judge Tolentino
20 thatcould
20 an interest that couldbe besubstantially
substantiallyaffected
affectedby
by the outcomeof
theoutcome of the
theproceeding.
proceeding. She
She is
is not,
not, to
to Judge
Judge
21 ii Tolentino's knowledge, olentino's knowledge,likely toto likely bebe
a material
a materialwitness
witnessininthe
the proceeding.
proceeding. Therefore,
Therefore, none
none of
ofthese
these
22 23 circumstances circumstances exist exist to
to require
require that
that Judge Tolentino invoke Judge Tolentino invoke the the mandatory
mandatory disclosure requirements of requirements of
23 24 24 §§6106.
6106.
25 The circumstances of the circumstances of theOAG's OAG's objection
objection differ
differnotably
notablyfrom
fromthe
thecircumstances
circumstances in People
People v.
26 .. . .
where the
Santos, where the Guam Guam Supreme
SupremeCourt
Courtfound
foundthe
theprovisions
provisionsof
of §§ 6105(b)
6105(b) required
required aa judge's
]edge's
27 disqualification (absent a waiver following followingdisclosure)
disclosure)when
whenthat
that judge
judge was
was related
related within
within the
the third
third
28 degree to to the
the Chief
Chief Prosecutor
Prosecutorof
of the
the OAG.
OAG. See People
People v. Santos, 2018 Guam 12 ,r1]8.8. The Guam v. Santos, Guam Decision Decision and OrderDenying and Order Denyingthe
theOAG's
OAG's Statement
Statementof
of Objection
Objection 77G.C.A.
G.C.A. §§ 6107
6107 && Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People
People of
ofGuam
Guam v. Frankie Leon
Leon Guerrero
Guerrero Santos
Santos Jr.
Jr.
// Page 8 ofll
of 11
k
1 Supreme 1 Supreme Court Court concluded
concluded that the Chief
that the Chief Prosecutor was acting as as aa lawyer
lawyer in the
the proceeding,
proceeding, even
even if
if
2 they 2 hey did did not
notpersonally
personally participate
participate in
in the
the case,
case, due
due to
to their
their supervisory
supervisory responsibility responsibility over the
the
3 3 performance of ofthe
the attorney in the proceeding. Id. at ,r attorney in 1113.
13. This
This same logic cannot
cannot be extended
extended to
4 ; Attorney ttomey General
General Moylan,
Moylan, despite
despite any
any supervisory
supervisory involvement
involvement he
he may
may have
have in
inthis
this case,
case~ because
because
5 6 Attorney ttomey General
General Moylan
Moylan is
is not
not related
related within the third
third degree
degree to
to Judge
Judge Tolentino.
Tolentino. Therefore,
Therefore, 7
6 7 7 G.C.A.
G.C.A.§ §6105(b)
6105(b)does
doesnot
notrequire
requireJudge
Judge Tolentino's
Tolentino's disqualification disqualification here.
here.
8 Applying the b. Applying the "appearance "appearance of
ofimpropriety"
impropriety" standard,
standard, Judge
Judge Tolentino
Tolentino was not
not
99 required required to
to disclose under77G.C.A.
disclose under G.C.A. §§6105(a).
6105(a).
10 10 Section 6105(a) requires requires that
that "any
"any judge
judge shall disqualify himself himself or herself
herself in any proceeding
ll 11 in·nwhich whichhis
hisororher
herimpartiality
impartialitymight
mightreasonably
reasonably be questioned". See 77 G.C.A.
be questioned". G.C.A. §§ 6105(a).
6l05(a). When
When
12 12 considering considering disqualification disqualific~tion under
under §§ 6l05(a),
6105(a), "What matters is "What matters is not
not 'actual
'actual bias,'
bias,' but
but 'the
'the appearance
appearance
13 -of bias."' See Van Dox v. Super Ct., of bias."' Ct., 2008 2008 Guam ,r (citing Dizon Guam 77 1132 Dizon v.
v. Super.
Super. Ct.
Ct. (People),
(People), 1998
Guam33'll,r 10 14 Guam 10 n.3).~ The appearance ).· The appearance of
ofbias
biasisisjudged
judged from
from the
the standard
standard of
of aa "reasonable
"reasonable person"
person" who
15 knows ows all
all the
the facts,
facts, and
andunderstands
understands the
the "contents
"contents ofofthe
thejurisdictions,
jurisdictions, parties,
parties, and
and controversies
controversies
16 involved,"
·nvolved," including
including such
such "realities
"realities of the Guam
oft.he· Guam judicial system" as as the
the relatively
relatively small
small number ·of
of
17 lawyers awyers in
inthe
the Guam
Guam her
bar and
and "the ,r (citation omitted).
"the nature of Guam families." Id. 1]32 18 Michigan Supreme The Michigan Supreme Court Court held that "the
"the appearance
appearance Of impropriety" standard applies only of impropriety"
19 where here there
there isis no
no clear
clear rule
rule or canon pertaining to the subject et matter. See Adair v. State of of Michigan
20 Dept. of Education, ept. of Education, 474 Mich. 1027, 1039 (Jan.
(Jan. 31,
31, 2006).
2006). The
The Court reasoned "specific court rules 21 21 or or canons
canons that
that pertain
pertain to
to aa subject
subject and
and that
that delineate
delineate what
what isispermitted
permitted and
and prohibited
prohibited judicial
judicial
22 conduct...
conduct. .would
wouldbe
beof
oflittle
littleconsequence
consequence ififthey
they could
could always
always be
be countermanded
countermanded by the
the vagaries of
23 an an 'appearance
'appearance of
of impropriety' standard". Id. at 1039. `
24 In this instant case, case, the
the non-disclosure
non-disclosure of
ofthe
therelationship
relationshipcomplained
complainedofby
oby the
the OAG
OAG is covered
25 25 byy §§6105(5), 6105(5), which
which specifically
specifically lays
lays out
out when
when aa judge's
judge's relationship
relationship to
to aa lawyer
lawyer in
in the
the proceeding
proceeding
26 warrants arrants that
that judge's
judge's disqualification.
disqualification. Importantly, Importantly,by
bylisting
listingthe
theprohibited
prohibited relationships
relationships between a
27 27 lawyer awyerand
andthe
the judge,
judge, §§ 6105(5)
6105(5) also
also states
states which
which relationships
relationships are permitted. Section are permitted. Section 6105(5)
6105(5) lists
lists
28 several several prohibited
prohibited relationships, relationships', and being the ex-partner of the ex-partner of the judge's judge's spouse is not one of of them.
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement
StatementofofObjection
Objection77G.C.A.
G.C.A.§§6107
6107&&Motion
Motion to
toDisqualify
Disqualify
CF0435-24,People
People of
ofGuam v. Frankie
Guam v. Frankie Leon Guerrero Guerrero Santos Jr.
Santos Jr.
Page 9 ofll
of 11
.-
11 Because ecause§§6105(5)
6105(5) delineates
delineates what
what is
is and
and isn't
isn't aa prohibited
prohibited relationship,
relationship, the
the OAG
OAG cannot
cannot negate that
negate that
2 rulele by byinvoking
invoking the
the "appearance
"appearance of
of impropriety" standard.
3 c.
c. Under
Underan
an"objectively
"objectivelyreasonable
reasonable person"
person" standard,
standard, Judge
Judge Tolentino
Tolentino was not
not
4 required to disqualify disq11alify himself
himself in this case.
5 Even Even if
if §§ 6105(a)
6105(a) was
was permitted
permitted to
to bypass
bypass the
the clear
clear rule
rule pertaining
pertaining to
to this
this challenged
challenged
6 relationship, elationship, no
no objectively
objectively reasonable
reasonable person would question Judge Tolentino's Tolentino's impartiality here.
7 The American Bar Association ("ABA") acknowledged acknowledged that "judges ''judges are ordinarily in the best 8 position ositionto
to assess
assess whether
whether their
their impartiality
impartiality might
might reasonably
-reasonably be
be questioned
questioned when lawyers or parties 9 with ithwhom
whom theyhave
they haverelationships
relationships ...
... appear
appear before them." See ABA ABA Formal
Formal Op.
Op. 488 (Sep. 5, 2019).
1.0 The 10 he ABA ABAalso
also notes
notes that
that "in
"insmaller
smallercommunities
communities and
and relatively
relatively sparsely-populated sparsely-populated districts, districts, judges
ll 11 mayayhave havesocial
socialand
andpersonal
personalcontacts
contacts with
withlawyers
lawyers and
andparties
parties that
that are
are unavoidable.
unavoidable. In that that
12 circumstance, too strict aa disqualification ircumstance, too standard would be impractical disqualification standard impractical to enforce enforce and would
13 potentially disrupt the administration ofjustice."
otentially disrupt justice." Id.
E (emphasis added). The
(emphasis added). The ABA ABA also
also recognizes
recognizes
14 that hat over over time
time relationships
relationships change "or may have ended ended sufficiently
sufficiently far in the past that it is not a 15 current current concern concern when viewed objectively." Id. "Finally, "Finally, judges
judges must avoid disqualifying themselves 16 too oo quickly quickly or
or too
too often
often lest
lest litigants
litigants be
be encouraged
encouraged to use
use disqualification motions as a means of disqualification motions of 17 judge-shopping, ·udge-shopping, or or other
other judges
judges in
in the
the same court ... become overburdened."
overburdened." Id.
Q
18 Adopting the recommendations recommendations of
ofthe
the ABA
ABA in
in its
its Formal
Formal Opinion
Opinion488,
488, based
based on
on the
the obi ective
objective
19 reasonable easonable person person standard,
standard, and considering the Answer filed by Judge _Judge Tolentino
Tolentino and the judicial 20 community community and and context
context in
in which
which the
the disqualification
disqualification is sought, sought, the
the Court
Court makes
makes the
the following
following
21 21 findings:
findings:.
22 • • The circumstances previously requiring circumstances previously requiring Judge Judge Tolentino
Tolentino to disqualify
disqualify himself have
23 changed and, by Attorney changed and, Attorney General General Moylan's own
own admission
admission during
during the
the meeting
meeting
24 between himself, his staff, Judge Tolentino, and the court court staff,
staff any conflict
conflict relating to
25 the familial association between between Judge Tolentino
Tolentino and
and Attorney
Attorney General
General Moylan
Moylan "no
26 longer existed." See Answer Answer at ,r 7 (Jul.
at 117 (Jul. 29,
29, 2024).
2024). Therefore, Judge Tolentino is not
27 required to disqualify required to disqualify himself himself under§
under § 6105(a).
6l05(a).
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement of Objection Statement of Objection 77G.CA.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People
People of
ofGuam v. Frankie Leon
v. Frankie Leon Guerrero Guerrero Santos Jr.
Santos Jr.
' Page 10 10 ofll
of 11
/
:/
v' 1 / (•
/
11 •
• The relationship between Attorney Attorney General Moylan
Moylan and Mrs. Tolentino Tolentino ended on June
2 13, 1997. Id. at ,r1114. Therefore, the relationship has ended sufficiently 14. Therefore, sufficiently far far in the past
3 is not that it is not aa current current concern
concern when
when viewed
viewed objectively.
4 • Attorney General Moylan and Mrs. Tolentino's children are now grown adults living
5
5 on their own, which poses another significant significant change
change in
in relationships. j at ,r,r relationships. Id. W7, 7, 14.
14.
6 •
• In Guam's
Guam's small
small legal
legal community
communityand
and with
with aa trial
trial court
court bench consisting of of only four
7 (4) dedicated criminal court dockets, requiring Judge Tolentino, who is one of of the four
8 (4) judges assigned (4) judges assigned to
to the
the criminal
criminal docket,
docket, to
to disqualify
disqualify himself
himself pursuant
pursuant to§
to § 6105(a)
6l05(a)
9 from from all cases in which Attorney Attorney General
General Moylan represents represents the People
People of Guam
10
10 would: (a) be impractical to enforce, (b) negatively negatively impact the efficient administration
11
11 of (c) lead to judge-shopping and/or overburden of justice, and (c) overburden the the judges
judges in the same
12
12 court.
13
13 CONCLUSION 14 For the reasons stated above, the Court DENIES the OAG's OAG's Objection.
Objection. Judge
Judge Tolentino
Tolentino is
15 not
notrequired
requiredtotodisclose
disclosehis
hispersonal
personalrelationship
relationship with
with Attorney
Attorney General
General Moylan,
Moylan, nor
nor is he required
16
16 totodisqualify
disqualifyhimself
himselfunder
under§ 6105.
6105.
17
17
18
18 IT IS
IS SO ORDERED
ORDEREDthis
this August AuguS t 29,
29 2024
'
19
19
20
21
22 HONORABLE ALBERTO C. c. LAMORENA, LAMORENA, III
Presiding Presiding Judge, Superior Court of Guam Guam
23
24
senvlce v|A-e-inn SERVICE VIKE ..Alt;. .,
25 I lcknowledn
1clcnowled1e that
that an dntmnic
an tlettronk:
wav of dll DJilfnal <Ojlf oftht ulillnd WISt-mailtdlD:
Msg-maiog u:
26
M ; 5-5-• f ¢ Il}:fi.,.✓
t:41--Y:. L
VS
27
28
Decision Decision and Order Denying and Order Denying the
the OAG's
OAG's Statement of Objection Statement of Objection 77G.C.A.
G.C.A. §§6107
6107&&Motion
Motion to
to Disqualify
Disqualify
CF0435-24,People
People of
ofGuam v. Frankie Leon v. Frankie Leon Guerrero Guerrero Santos Jr.
Santos Jr.
Page Page 11 ofll
f 11