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5
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
\
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 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 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 coparenting
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
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
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
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
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
28
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