People v. Satur

Opinion

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1 1 CLERK QF CLERK OF GGURT COURT

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6 IN THE SUPERIOR SUPERIOR COURT OF GUAM

7 PEOPLE OF GUAM, Criminal Criminal Case Case No. CF0469-24 CF0469-24 8 GPD Report GPD Report No. No. 24-15651 24-15651 v. v 9 DECISION AND ORDER 10 10 DIANA BORJA SATUR, DIANA DENYING THE OAG'S D AG'S DOB: 09/13/1982 DOB: 09/13/1982 STATEMENT OF STATEMENT OF OBJECTION 11 11 7 G.C.A. § 6107 6107&&MOTION MOTION TO TO Defendant. DISQUALIFY 12 12

13 13 INTRODUCTION 14 This matter is before the Honorable Alberto C. Lamorena, Lamorena, III III upon the Office of the the Attorney Attorney

15 General's General's (the "OAG's") Statement (the "OAG's") of Objection Statement of Objection 77 G.C.A. G.C.A. §§ 6107 6107 & & Motion Motion to to Disqualify Disqualify (the (the 16 "Objection"). "Objection"). The TheOAG OAGobjects objectstotothe theHonorable HonorableAlberto Alberto E. E. Tolentino's Tolentino's ("Judge ("Judge Tolentino's") Tolentino's") 17 17 competency competencytotopreside presideover overthe theabove-captioned above-captioned matter matter under under 77 G.C.A. G.C.A. §§ 6107. 6107. 18 Having considered the Objection, Objection, Judge Judge Tolentino's Tolentino's Answer, the OAG's Response, as well as

19 the theapplicable applicablestatutes statutesand andcase caselaw lawand andallallrelevant relevantportions portionsofofthe the record, record, this this Court Court now issues the 20 following followingDecision Decision and and Order Order DENYING the OAG's request request to disqualify Judge Tolentino Tolentino and 21 reassign this case.

22 BACKGROUND

23 Defendant is charged charged with Possession Possession of ofaa Schedule Schedule IIII Controlled Controlled Substance Substance (as 3rd Degree (as aa 3'd 24 Felony) Felony)after afterpolice policeallegedly allegedlyfound foundmethamphetamine methamphetamineand andmethamphetamine-related methamphetamine-related paraphernalia 25 during duringaasearch search other of her vehicle. See Indictment (Jul. 19, 19, 2024). 26 Judge Tolentino was subsequently assigned to preside over this this criminal case. See Notice of 27 Judge JudgeAssignment Assignment(Jul. (Jul. 10, 10, 2024). 2024). 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 CF0469-24, CF0469-24, People People of of Guam v. v. Diana Diana Borja Satyr Satur Page 11 of 11 ofll *p

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11 On July On 23, 2024, July 23, OAGfiled theOAG 2024,the filed their their Statement Statementof ofObjection Objection77G.C.A. G.C.A. §§ 6107 6107 & & Motion Motion to to

2 Disqualify. Disqualify.The TheOAG OAGseeks seeksJudge JudgeTolentino's Tolentino'sdisqualification disqualificationon onthe the following following grounds: grounds:

3 • • Judge Tolentino's Judge Tolentino's established history history of of disqualifying himself himself from from matters matters in which

4 Doug Moylan Moylan appeared appeared as as private private counsel, counsel, prevents prevents Judge Toler from Judge Tolento from handling handling

5 matters involving the matters involving the OAG OAG now now that that Doug Doug Moylan Moylan currently currently serves serves as as the elected elected

6 Attorney General of of Guam. Guam.

7 • • JudgeTolentino's Judge Tolentino's personal with Attorney personal relationship with Attorney General General Moylan Moylannecessitates necessitates his

8 disqualification disqualification in mattersinvolving in matters involving the OAG. Judge Judge Tolentino Tolentinois is manned to Attorney married to Attorney

9 General Moylan's ex-wife. and General Moylan's and Attorney Attorney General General Moylan is the the father father of ofJudge Judge 10 10 Tolentino's step-children. Tolentino's step-children.

11 11 See Objection Objection at at 22 (Jul. 23, 2024). 12 12 On 29,2024, On July 29, 2024,Judge JudgeTolentino Tolentinofiled hisAnswer filedhis Answer to to Objection Obj section ("Answer"). In ("Answer"). In his his response,

13 13 Judge Tolentino challenges the timeliness challenges the timelinessof of the the OAG's OAG's Objection. Objection. See Answer Answer at ,r 11ll (Jul. at 11 (Jul. 29,

14 14 2024). 024).Judge JudgeTolentino Tolentinoalso alsomade madethe thefollowing 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 • 116. • ,r 6. That That at at Mr. Mr. Moylan's Moylan'srequest, request,aameeting meetingbetween betweenhim himand and the the undersigned, undersigned, the undersigned's chamberstaff, undersigned's chamber staff,the the Administrator Administratorof of the the Courts, Courts, and and Mr. Mr. Moylan's 17 17 transition chairperson, chairperson,Mr. Mr.Wilfred Wilfred Aflague, Aflague, occurred occurred inin December December 2022. 2022. lb 18 • 117. • ,r 7. That at this meeting, Mr. Mr. Moylan Moylanassured assuredme meand and the the other other members members in in attendance 19 19 that he heperceived perceived no 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 nono longer existed, to 21 wit: that that during my term term as the Magistrate Magistrate Judge andandas asaaJudge JudgeI Ihad hadroutinely routinelyrecused reused myself myself from from all all matters matters where Mr. MoylanMoylan waswas the the attorney attorney of aa party before me on 22 the basis that that he he was the father father ofof my my minor minor step-children step-children and and that that the minor step- step- 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 thatas asof of even date, date, both step-children have now reached majoritymajority and and adulthood 24 and have have been been residing residing at their own own residences in in Guam and and in in the the U.S. U.S. Mainland.

25 • 118. • ,r 8. That That Mr. Mr. Moylan Moylannever nevermade madean anappearance appearance as a lawyer in in this case.

26 • 1114. • ,r 14. That Thatmy mywife wife Doris L.G. Tolentino and Attorney General and Attorney General Moylan Moylan were divorced 27 on June on 13, 1997, June 13, 1997,andandthat thathere therewere weretwo twominor minorchildren children at atthe thetime timeof of the the dissolution ofmaniage, of marriage,totowit: wit:Brandon Brandon(born (born1990) 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 of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CF0469-24, CF0469-24, People People of of Guam v.v. Diana Diana Borja Satyr Satur Page of 11 Page 2 ofll \

11 • 11 • ,r 17. 17. II have have never observed Mr. never observed Mr. Moylan and and my my wife wife involved involved in in any any sense sense in co- parenting the the children of their marriage manage as as the the children children have have been been raised raised and provided 2 with protection with protection and and care to ensure their their healthy healthy development development into adulthood, adulthood, primarily 3 wifeand by my wife andme, me,and and that that at at present they areare in in fact fact adults adults able able to conduct conduct and and make their own decisions decisions in in life. life. 4 • 1118. • ,r 18. That based basedupon uponthe theforegoing foregoing averments, averments,the thefact factthat thatAttorney Attorney General General Moylan Moylan 5 5 is the the biological biological father father of ofthe theundersigned's undersigned's stepchildren provides no stepchildren provides no basis basis for disqualification disqualification under under 7 G.C.A. §§6105(b) 7 G.C.A. 6105(b)or orthat that the undersigned' s"impartiality the undersigned's "impartiality might might 6 6 reasonably be questioned" as as required under subsection subsection(a). (a). 7 7 • 11 • ,r 19. 19. That "[u]nder subsection 6l05(a), what subsection 6105(a), what matters "actual bias", but "the matters is not "actual 8 8 appearance appearance of of bias." bias." Van Van Dex Doxat ,r 32 ((citingDizon at 1132 Dizon v. Super. Super. Ct. Ct. (People), (People), 1998 1998 Guam 9 9 ,r 10'10n.3). 3 11 n.3). The The appearance appearance ofof bias bias is judged from the the standard of a "reasonable standard of "reasonable who knows person" who knows all all the thefacts, facts, and and understands understands the "contents of the the "contents the jurisdictions, 10 1 parties, and parties, and controversies controversiesinvolved," including such involved," including such "realities of the "realities of the Guam Guam judicial system" asas the relatively relatively small small number number of oflawyers lawyers in inthe the Guam Guam bar bar and and "the nature of nature of 11 11 Guam families." (citation omitted). families." Id. (citation 112 2 • 1130. • ,r 30. My My wife wifeand and Mr. Mr. Moylan Moylanhave havebeen been divorced divorced for for close close to to twenty-seven twenty-seven years years 113 and that thatthe thechildren childrenof oftheir theirmarriage manage are adults adultsliving living on their own andand well well over the age of ofmajority majorityand andthat that no no reasonable reasonable person person who who knows knows all allthe thefacts factsand andunderstands understands 14 14 the contents of the jurisdiction, jurisdiction, parties and andcontroversies controversies involved involved inin the the Guam judicial judicial system would conclude system would conclude thatthat there there exists exists an appearance appearance of of bias bias requiring requiring my 15 15 disqualification disqualification in in this this matter. matter. 16 d. 17 On On August 13, 2024,the 13, 2024, theOAG OAG filed filed their Response Response to to Judge JudgeTolentino's Tolentino's Answer 18 ("Response"). ("Response").The TheOAG OAGasserts assertstheir theirObjection Objectionwas wastimely timelyfiled, filed,being beingfiled filedless lessthan than two weeks weeks 19 after Judge Tolentino's initial Judge Tolentino's initial assignment. assignment. See Response at 1-3 Response at 1-3(Aug. (Aug. 13, 13,2024). 2024). The The OAG OAG also also 20 expands on their their argument argumentthat thatJudge JudgeTolentino Tolentino is is biased biasedper per se, se, arguing arguing that thatJudge JudgeTolentino's Tolentino's 211 2 personal relationship with with Attorney AttorneyGeneral GeneralMoylan Moylanhas hasnot notsubstantially substantiallychanged changed and and continues to 22 provide provide aa basis for his disqualification. Id. at 3-6. 23 On On July 30, 2014, 2014, this this Court Court was was assigned assigned to to address addressthe theObjection. Objection. See Notice of 24 Assignment of Recusal Judge ofRecusal Judge (Jul. 30, 2024). 2024). 25 DISCUSSION 26 I. 1. Law Governing The Law Governing Judicial Judicial Disqualification: Disqualification: 27

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 CF0469-24,People CF0469-24, People of of Guam v.v. Diana Diana Borja Bofja Satyr Satur Page 3 ofll Page of 11 \

11 Judicial disqualifications Judicial disqualificationsare aregoverned 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 as as follows follows::

4 (a) a) Any AnyJudge Judgeshall shalldisqualify disqualifyhimself himselfor orherself herselfin inany anyproceeding proceedingin in which which his his or or her impartiality might reasonably reasonably bebe questioned, questioned,but butif, if, following following complete complete disclosure disclosure to 5 all parties parties in the proceeding ofof the the reasons reasons for for disqualification, disqualification, all parties parties agree to having the Judge continue to Judge continue to sit in the the proceedings, proceedings, he he or she she need not disqualify disqualify 6 himself himself or herself. 7 (b) (b) AAJudge Judgeshall shallalso also disqualify disqualifyhimself himselfororherself herselfin inthe the following followingcircumstances, circumstances, butbut 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 disqualification, all agree to having the parties agree the Judge Judge continue continue toto sit in the the 9 proceedings, he or sheshe need neednotnotdisqualify disqualify himself himself or herself: herself: 10 10 (1) Where Whereheheororshe shehas hasaapersonal personalbias bias or orprejudice prejudice concerning concerning aa party, party, or 11 11 personal personal knowledge of ofdisputed disputed evidentiary facts concerning the proceeding; proceeding,

12 12 (2) Where Whereininprivate privatepractice practiceheheor orshe sheserved served as as aa lawyer lawyer in in the the matter matter in in 13 13 controversy, or a lawyer lawyer with with whom whom he or she previously previously practiced law law served sewed during such association during such associationas as aa 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 capacity participated participated asas counsel, counsel, advisor or material material witness concerning concerning the 16 16 proceeding proceeding or, as as such government employee, such government employee, expressed an official expressed an official opinion opinion 17 17 concerning the merits ofof the the particular matter in in controversy; controversy,

18 18 (4) (4) Where Wherehe heororshe sheknows knowsthat that he he or or she, she, individually individually or or as as aa fiduciary, or or his or or her spouse spouse or minor child child residing residing in in his his or or her her household, 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 to 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 third third degree degree of of 22 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 of a trustee of 24 party; (B)isisacting (B) acting as as aa lawyer lawyer in in the proceeding; proceeding, 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)isisto tothe the Judge's Judge's knowledge knowledge likely likelytoto be beaa material material witness witness in in the 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 of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CF0469-24,People People of of Guam v.v. Diana Diana Borja Bolja Satyr Satur Page of 11 Page 4 ofll 11 Section Section 6106 6106 compels compels aa judge judge to to disclose disclose aa disqualification disqualification listed listedunder under§§6105 6105:

2 Whenever Whenever aa Justice or Judge shall have knowledge knowledge of of any any fact fact or or facts facts which, under the provisions of 6105 of provisions of ofthis disqualify him this Chapter, disqualify 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, it shall be his or her duty to declare the same in open court and-cause and-cause aa memorandum memorandum thereof thereof to be entered in the minutes. 4 It shall be be the duty of the clerk to transmit forthwith forthwith aa copy copy of of 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 or proceeding, proceeding, except such parties asas are are presented presented in person or by attorney when the declaration is 6 made.

77 See 77 G.c.A. G.C.A. §§ 6106. 6106. 8 If Ifaa judge judge fails fails to to disclose disclose aa disqualifying disqualifyingfactor factorunder under§6105, 6105,then thenany any party party to to the the action who 9 13 has as appeared appeared inin the case may raise the the objection objection to to competency. competency. In In this this regard, regard, §§ 6107 6107 provides provides as as 10 11 follows: 11 follows:

12 12 Whenever a Justice or Judge who shall shall be be disqualified disqualified under under the the provisions provisions of of this Chapter to to sit or act act as as such such in in any action or proceeding pending before him or her 13 13 neglects or fails to declare his or her disqualification disqualification inin the manner provided by this Chapter, any party toto such action or such action or proceeding proceeding who who has appeared therein may present 14 14 to the court and file with the clerk a written statement objecting to the hearing of of such 15 15 matter or any trial of any issue of fact oror law law in in such such action action or or proceeding proceeding before such Justice Judge, and setting forth the fact or facts Justice or Judge, facts constituting the ground constituting the ground of the 16 16 disqualification disqualification ofof 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 presenting party party on on each each party, party, or his or her attorney, who 17 has appeared in the action or proceeding and on the Justice or Judge alleged in such 18 18 statement to be disqualified.

19 Within ten (10) days after the service of of such statement statement as above provided, or or ten (10) days after the filing of any statement, 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 22 in such statement statement and setting setting forth forth any any additional additional fact fact or or facts facts material or relevant to the question of of his or her disqualification. The clerk shall forthwith transmit a copy of 23 the Justice's or Judge's consent consent or or answer answer to each 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 in thethe manner manner prescribed prescribed forfor the the verification verification ofof pleadings. pleadings. The 25 statement statement of a party party objecting to the Justice or Judge on the ground of his or her objecting to the Justice or Judge on the ground disqualification disqualification shall shall be be presented presented atat the the earliest earliest practicable practicable opportunity opportunity after after his or her 26 appearance and discovery discovery of of the facts constituting constituting the ground ground of of the Justice's or Judge's disqualification, and in any 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 CF0469-24,People CF0469-24, People of of Guam v.v. Diana Diana Borja Satyr Satur Page of 11 Page 5 ofll 11 No Justice No Justice oror Judge Judge who shall shall deny deny his his or or her her qualification qualificationshall shall hear hear oror pass pass upon upon the question of question of his oror her her own own disqualification, disqualification, but but in every every case case the the question question of the the 2 Justice's or or Judge's Judge'sdisqualification shall be disqualification shall be heard and determined by some other some other Judge. 3 The Presiding Judge, The Presiding Judge, or or next next senior Judge, Judge, if if it is the Presiding Presiding Judge's disqualification disqualification that is is being being requested, requested,shall shallmake makesuch suchassignment assignmentwithin withinfive five(5) (5) days days after after receiving receiving 4 the clerk from the clerk the the notice notice that that the statement statement of of disqualification has been filed. In In the the ofaa Justice's case of Justice's disqualification, disqualification, the the matter shall shall be heard by the the Supreme Supreme Court Court 5 without the questioned constituted without questioned Justice. Justice. 6 Ifsuch If such Judge admits his or her disqualification, or or files files his his or orher her written writtenconsent consent that that 7 the action or proceeding be tried before another Judge, before another Judge, or or fails to file the answer within file the within the ten (10) allowed, or (10) days allowed, orififititshall shallbe bedetermined determinedafter afterthe thehearing hearingthat that he he or or she she is 8 disqualified, the disqualified, the action or proceeding action or proceedingshall shallbe beheard heard and and determined determined by by another another Judge Judge ofthe of the Superior Superior Court Court whowho is is not not disqualified. disqualified.Such Suchother otherJudge Judge shall shall be be assigned assigned inin the 9 same manner as as the theJudge Judgewho whowas wasdisqualified disqualified was assigned to hear the the case case initially. initially. 10 10 See 7 G.C.A. G.C.A. §§ 6107. 6107. 11 11 II. 11. The Objection Objection is 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 to any hearing before before Judge Tolentino. 13 13 The Court will will first first address address the procedural proceduralissue issueof ofwhether whetherthe theOAG's OAG's Objection was timely 14 14 15 filed. filed.Judge JudgeTolentino Tolentinoinitially initiallyraised raisedthe theissue issueof oftimeliness, timeliness,stating stating "that "that neither neither Mr. Moylan Moylan nor nor the 15 16 16 Office Officeofofthe theAttorney AttorneyGeneral Generalhad hadever everchallenged challengedororobjected objectedtotome mepresiding presidingover overthis this case case until until

17 17 the he instant Statementof instant Statement of Objection Objection and andMotion Motion to to disqualify." disqualify." See Answer Answer at ,r (Jul. 29, 2024). at 1]9 18 18 Where Where aa judge judge neglects neglects or or fails fails to todisclose disclosehis hisdisqualification disqualificationmandated mandatedunder under§ 6105, 6105, §§ 6107 6107 l19 9 provides that that "any party party to to such such action action oror proceeding proceeding who whohashas appeared appeared therein therein may present present to the 20 courtand 21 court and file filewith withthe theclerk clerkaawritten written statement objecting to statement objecting to the the hearing of of such or any such matter or any trial trial of of 21 22 any anyissue issue of offact factororlaw lawininsuch suchaction actionororproceeding proceedingbefore beforesuch suchJustice Justice or orJudge, Judge, and and setting setting forth

hefact 23 the factor orfacts factsconstituting constitutingthe the ground ofthe ground of the disqualification disqualificationofofsuch suchJustice Justice or or Judge. Judge. Copies of ofsuch such

24 written 24 rittenstatement statementshall shall forthwith forthwithbe besewed servedby thepresenting bythe presentingparty partyon oneach each party, party, or or his his or or her attorney, 25 25 who has has appeared in in the action action or or proceeding proceedingand and on onthe the Justice Justice or or Judge Judge alleged alleged in in such such statement statement to 26 disqualified." See 7 be disqualified." 7 G.C.A. G.C.A. §§ 6107. 6107. 27

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 CF0469-24,People of of Guam Guam v.v.Diana DianaBorja Bolja Salur Satur Page 66 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 onthe the ground ground of of his or her shall be her disqualification shall be presented at at the the earliest earliest practicable opportunity practicable opportunity 3 3 after rfter his his or or her herappearance appearance andand discovery discovery of ofthe the facts constituting constituting the the ground ground of ofthe the Justice's Justice's or 4 4 udge 's disqualhication, 5 Judge's disqualification,and andininany anyevent eventbefore beforethe thecommencement commencement of ofthe the hearing hearing of ofany any issue of fact issue of fact 5 6 ininthe the action action or or proceeding before before such Justice Justice or or Judge." Judge." Id. ( emphasis added). Li (emphasis added). The The Guam Guam Supreme Supreme 6 7 Court Court has has confirmed confirmed that that statements statement_s of of objection objection shall shall "be "bepresented presented at at the the earliest earliest practicable practicable

8 opportunity opportunity after ... discovery of disqualification." See Van Dox for disqualification." of the facts constituting the ground for

99 v..Super Super Cr., Ct., 2008 Guam Guam 77,r 1144. 44. 10 "A "A pa1*ty's failuretotocomply party's failure complywith with any any of these requirements constitutes sufficient grounds to 11 11 strike or disregard the statement of objection." See People v. Johnny, Johnny, 2006 Guam 10 ,r1 11. 11. Thus, Thus, 12 13 "with respect to the statutory provision requiring that disqualification be urged at the 'earliest 'earliest practical 13 "with respect to the statutory provision requiring that disqualification be 14 opportunity opportunity,'the theintention intention isis 'clear 'clear that that failure failure totocomply comply with withthe the provision constitutes a waiver.799 provision constitutes "'

15 Dox v. Van Dox 15 See Van v. Super Cr., Ct., 2008 Guam Guam 77,r 1144 44 (quoting Caminetti v. (quoting Caminetti v. Pac. Pay. Mut. Ins. Co. Mai. Ins. Co. of Cal., 139 139 16 16 P.2d .2d930, 930, 933 933 (Cal. (Cal. 1943) 1943) (emphasis (emphasis added)). added)). The TheGuam GuamSupreme Supreme Court Courtapplied appliedthis this"si1ence-as- "silence-as- 17 17 waiver rule" in San Union, Inc. v. Union, Inc. Arnold, "to avoid v. Arnold, avoid the possibility possibility of 'lying 'lying in in wake, wake, raising raising the 18 18 19 recusal ecusal issue issue only after after learning the court's ruling learning the ruling on the merits."' See San the merits."' San Union, Inc. v. Union, Inc. v. Arnold, 19 20 2017 20 Guam10 017Guam 10'H 27 ,r (quoting Phillis 27 (quoting Phillips v. v. Amoco Amoco Oil Oil Co., Co., 799 799 F.2d F.2d 1464, 1464, 1472 (nth 1472 (11 th Cir. 1986). Cir. 1986).

21 However, However, a finding of timeliness "should be 'construed liberally' to to promote promote justice." See

22 Van 22 Van Dox Dox v. v. Super Super Cr., ,r 45 Guam 77 1[ Ct., 2008 Guam 45 (quoting Eagle Maint. Mains. & & Supply Supply Co. Co. v. Super. Super. Ct., Ct., 16 16 23 23 Cal.Rptr. Cal.Rptr.745, 745, 747 747 (Dist.Ct.App. (Dist.Ct.App. 196l)). 1961)). AAtimely timelystatement statementof ofobjection objectionisis made made "prior "prior to any hearing 24 22 before efore the the challenged challenged judge judge in ,r 46. in the matter." Id. at 1146. 25 26 Here, Judge Tolentino Tolentino was was assigned assigned to to this matter only 13 days before the OAG filed their 26 27 Objection. Objection. See Notice of of Judge Assignment (Jul. 10, 2024); 2024), Objection Objection (Jul. (Jul. 23, 23, 2024). 2024). During that 27 28 13-day 13-day timeframe, Judge Tolentino timeframe, Judge Tolentino did did not not preside preside over over any any hearings hearings or make any any decisions decisions 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 CF0469-24,People CF0469-24, People of of Guam v.v. Diana Diana Borja Borja Satyr Satur Page 7 ofll of 11 1 concerning concerningthis thiscase. case. This Thisleft leftthe theOAG OAGno noearlier earlieropportunity opportunityto to raise raise the the issue issue of of disqualification to 2 the heCourt. Court. While Whileparties partiesmust mustpresent presentstatements statementsofofobi section "at the earliest practicable opportunity objection

3 after afterhis hisor orher her appearance appearance and and discovery discovery of ofthe the facts facts constituting constitutingthe the ground ground of ofthe the Justice's or Judge's

4 disqualification", disqualification", they they must must be be afforded afforded that opportunity first place. See 77 G.C.A. opportunity in the first G.C.A. §§ 6107. 6107. 5 Thirteen hirteen days days isis sufficiently sufficiently within within the the "earliest "earliest practicable practicable opportunity" opportunity" window, window, especially especially since 6 there here were were no no hearings before the the challenged challengedjudge judge in inthe theinterim. interim. Id. ld Therefore, Therefore, the the Objection Objection was

7 timely imelyfiled filed and and procedurally procedurally sound.

8 III. The Objection is substantially defective because:

9 a. Jude Jude Tolentino Tolentino isisnot notcompelled compelled totodisclose disclose his his personal personal connection to Attorney connection to l10 0 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. 11 The The only only circumstance circumstance in in §§ 6105 6105 requiring requiring disqualification disqualification (absent (absent aa waiver waiver following following

12 disclosure) 12 disclosure) involving involving the the judge's judge'sspouse spouse isis §§ 6l05(b)(5) 6105(b )(5) when the spouse whenthe spouse is is any any of: of: (A) (A) aa party party to the to the 13 13 proceeding, or an officer, director, director, or trustee trustee ofof aa party; party, (B) (B) acting as a lawyer lawyer in the proceeding; proceeding, (C) 14 12 known own by bythe theJudge Judge to to have have an aninterest interest that that could could bebe substantially substantially affected affected by the the outcome outcome of the 15 16 proceeding, roceeding; or or (D) (D) is is to to the the Judge's Judge's knowledge likely likely to to be be aa material witness in the proceeding. See 16 17 17 77 G.C.A. G.C.A. §§ 6l05(b)(5). 6105(b)(5).

lb 18 Judge Tolentino's Tolentino's spouse spouse is is not not aa party party to to the the proceeding, proceeding, or or an an officer, officer, director, director, or trustee of 19 aaparty. 19 party. She Sheisisnot notacting actingasasaalawyer lawyerininthe theproceeding, proceeding, nor nor is is she she known known by by Judge Judge Tolentino to have 20 20 an interest that could be be substantially affected by the outcome of thethe proceeding. proceeding. She She is is not, to Judge 21 ii Tolentino's olentino'sknowledge, knowledge,likely likelytotobe bea amaterial materialwitness witness in inthe the proceeding. proceeding. Therefore, Therefore, none none of of these 22 23 circumstances circumstances exist exist to to require require that that Judge Judge Tolentino Tolentino invoke invoke the the mandatory disclosure disclosure requirements of 23 24 24 §§ 6106. 6106.

25 The circumstances of the OAG's OAG's objection objection differ differ notably from from the circumstances in People v. 26 .. o . antos, where Santos, where the the Guam Guam Supreme Supreme Court Court found found the the provlslons provisions of of §§ 6105(b) 6105(b) required required aa Judge's judge's 27 disqualification (absent a waiver following disclosure) judge was related within the third disclosure) when that judge 28 degree to the Chief Santos, 2018 Guam 12 ,r Chief Prosecutor of the OAG. See People v. Santos, 1]8.8. The Guam Decision Decision and Order Denying and Order Denyingthe theOAG's OAG's Statement of Objection Statement of Objection 77G.C.A. G.C.A. §§ 6107 6107 & & Motion Motion to to Disqualify Disqualify CF0469-24,People People of ofGuam Guam v. Borja Satyr v. Diana Borja Satur Page 8 ofll of 11 SupremeCourt 1 Supreme Court concluded concluded that that the the Chief ChiefProsecutor Prosecutor was acting as as a lawyer lawyer in the proceeding, even if

22 they hey did did not notpersonally personally participate participate in in the the case, case, due due toto their theirsupervisory supervisory responsibility responsibility over the 3 erformance of 3 performance of the the attorney attorney in in the the proceeding. ,r 13. Id.atat11 proceeding. Q This same 13. This same logic logic cannot cannot be extended extended to 4 ttomey General 45 Attorney General Moylan, Moylan, despite despite any any supervisory supervisory involvement he may have have in in this this case, case, because because 5 ttomey General 6 Attorney General Moylan Moylan is is not not related related within the third third degree to Judge Tolentino. Therefore, 7 Tolentino. Therefore, 6 77 G.C.A. G.C.A. §§6l05(b) 6105(b)does does not not require require Judge Tolentino's disqualification Judge Tolentino's disqualification here. here.

8 Applying the b. Applying the "appearance of impropriety" "appearance of impropriety" standard, standard, Judge Judge Tolentino Tolentino was not not 9 required required to to disclose under 77 G.C.A. disclose under G.C.A. § 6105(a). § 6105(a).

10 Section 6105(a) 6l05(a) requires requires that "any judge shall disqualify himself himself or or herself herself in any proceeding 11 ll 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 disqualification under under§ 6105(a), "what matters 6105(a), "what matters is is not not 'actual 'actual bias,' bias,' but but 'the 'the appearance appearance

of bias."' See Van Dox v. Super Ct., 2008 Guam 13 of ,r (citing Dizon v. Super. Guam 77 1132 Super. Cr. Ct. (People), (People), 1998 1998 14 Guam ,r n.3). Guam331110 The appearance n.3). The appearance of of bias is judged judged from the standard of a "reasonable person" who

ows all 15 knows all the thefacts, facts, and andunderstands understands the the "contents "contents ofofthe thejurisdictions, jurisdictions, parties, parties, and and controversies controversies

·nvolved," including 16 involved," including such such "realities "realities of of the the Guam Guam judicial system" system" as as the the relatively relatively small small number of of

awyers in 17 lawyers in the the Guam Guam bar bar and "the nature nature of of Guam Guam families." Id. ,r 32 (citation families." Q1132 (citation omitted). omitted). 18 Michigan Supreme Court held that "the appearance of impropriety" standard applies only The Michigan

herethere 19 where there isis no no clear clear rule rule or et matter. See Adair v. State of or canon pertaining to the subject of Michigan

ept. of 20 Dept. ofEducation, Education, 474 Mich. 1027, 1039 (Jan. (Jan. 31, 31, 2006). 2006). The Court reasoned "specific court rules

or canons 21 or canons that that pertain pertain to to aasubject subject and and that that delineate delineate what what isispermitted permitted and and prohibited prohibited judicial judicial

conduct .would 22 conduct... wouldbe beof oflittle littleconsequence consequence ififthey they could could always always be be countermanded countermanded by the vagaries of

an 'appearance 23 an 'appearance of impropriety' impropriety' standard". standard". Id. Q atat 1039. 1039. 24 In this instant case, case, the the non-disclosure non-disclosure of ofthe therelationship relationshipcomplained complainedofby the OAG oby the 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 proceeding the proceeding

arrants that 26 warrants that judge's judge's disqualification. disqualification. Importantly, Importantly,by bylisting listingthe theprohibited prohibited relationships relationships between a 27 27 lawyer awyerand andthe thejudge, 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

several prohibited 28 several prohibited relationships, relationships, and being the ex-partner ex-partner of of the 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 of Objection Statement of Objection 77G.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CF0469-24, People of Guam v.v. Diana People of Diana Borja Bolja Satur Satur Page of 11 Page 9 ofll x

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 negate that that 2 ruleleby byinvoking invokingthe the "appearance "appearance of of impropriety" standard. standard.

3 c. c. Under Underan an"objectively "objectivelyreasonable reasonable person" person" standard, standard, Judge Judge Tolentino Tolentino was not not 4 required required to to disqualify disqualify himself himselfin in this this case. 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 obi objectively reasonable person would question Judge Judge Tolentino's Tolentino's impartiality here.

7 The American Bar Association ("ABA") acknowledged acknowledged that "judges "judges are are ordinarily in 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 or parties 9 with ithwhom whomthey theyhave have relationships relationships ... ... appear appear before them." See ABA ABA Formal Formal Op- Op. 488 (Sep. 5, 2019). 10 The 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. that In that

12 circumstance, too strict a disqualyication circumstance, too standard would be impractical disqualification standard to enforce impractical to enforce and would would 13 potentially otentially disrupt disrupt the the administration administration of ofjustice." Id. (emphasis added). added). The 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 must avoid disqualifying themselves 16 too oo quickly quickly or or too too often often lest lest litigants litigants be be encouraged encouraged to 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." Id. 18 Adopting the recommendations of of the ABA in in its Formal Opinion Opinion 488, based on the 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 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 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, staff, Judge Tolentino, and the court staff, any conflict relating to 25 the familial association between Judge Judge Tolentino Tolentino and and Attorney Attorney General General Moylan "no 26 longer existed." See Answer ,-r 7 (Jul. Answer 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.C.A. G.C.A. §§6107 6107&&Motion Motion to to Disqualify Disqualify CF0469-24,People of of Guam Guam v.v. Diana Diana Borja Bolja Satyr Satur Page 10 of 11 ofll 1 • The relationship between Attorney General Moylan and Mrs. Tolentino ended on June

2 13, 1997. Id. at ,r 14. Therefore, the relationship has ended sufficiently far in the past

3 that it is not a current concern when viewed objectively. - 4 • Attorney General Moylan and Mrs. Tolentino's children are now grown adults living 5 on their own, which poses another significant change in relationships. Id. at ,r,r 7, 14. 6 • In Guam's small legal community &nd with a trial court bench consisting of only four 7 (4) dedicated criminal court dockets, requiring Judge Tolentino, who is one of the four 8 (4) judges assigned to the criminal docket, to disqualify himself pursuant to§ 6105(a) 9 from all cases in which Attorney General Moylan represents the People of Guam 10 would: (a) be impractical to enforce, (b) negatively impact the efficient administration 11 of justice, and (c) lead to judge-shopping and/or overburden the judges in the same 12 court. 13 CONCLUSION 14 ·For the reasons stated above, the Court DENIES the OAG's Objection. Judge Tolentino is

15 not required to disclose his personal relationship with Attorney General Moylan, nor is he required

16 to disqualify himself under§ 6105. 17 - 18 Aug. 23, 2024 IT IS' so ORDERED this - - - - - - 19

20 21

22 HONORABLE ALBERTO C. LAMORENA, III Presiding Judge, Superior Court of Guam 23 24

25 SERVICE VIKE-MAIL I acknowledge that an electronfc copyof~~sinal \llcls~il~ to:

26 A0 , tosc,, ~ '( 27

Decision and Order Denying the OAG's Statement of Objection 7 G.C.A. § 6107 & Motion to Disqualify CF0469-24, People of Guam v. Diana Borja Satur Page 11 ofll