People v. Taimanglo

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM0215-24 )

8 )

vs. ) DECISION AND ORDER DENYING 9 ) THE OAG'S STATEMENT OF 10 DYLAN KEANU TAIMANGLO, ) OBJECTION 7 GCA § 6107 aka Dylan K. Taimanglo, ) AND MOTION TO DISOUALIFY 11 DOB: 09/08/1995 )

12 )

Defendant. )

13 ) 14 INTRODUCTION 15 This matter is before the Honorable Maria T. Cenzon on the Office of the Attorney 16 1 General's (the "Office of the Attorney General" or the "OAG") Statement of Objection 7 GCA § 7 18 6107 and Motion to Disqualify (the "Objection") filed on July 29, 2024, by Acting Chief

19 Prosecutor Gloria Rudolph (hereinafter "Chief Rudolph"). The OAG objects to Judge Alberto E. 20 . . as . ,, . .

Tolentlno's (here after Judge Tolentmo ) competency to preslde over the above-capt1oned 21 matter under 7 GCA § 6105 and requests his disqualification pursuant to 7 GCA § 6107.

22 Having considered the Objection, the Answer, the Response, as well as the applicable 23

24 statutes and case law and the relevant portions of the record, this Court issues the following

25 Decision and Order DENYING the Office of the Attorney General's request to disqualify Judge 26 . . .

Tolentmo and reassign thls case.

27

28

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 1 of23 1 PROCEDURAL AND FACTUAL BACKGROUND 2 A. The Brief Procedural History of this Case and Objection to Judge Tolentino 3 Assignment.

4 On July 21, 2024, Defendant Dylan Keanu Taimanglo (the "Defendant") was charged via 5 . . . . I Maglstrate Complalnt wlth Theft (As a Mlsdemeanor) and appeared before Maglstrate Judge 6 Benjamin C. Sison, Jr. for a Magistrate's Hearing. On July 24, 2024, the case was assigned, 7 8 pursuant to 7 GCA § 4103, to Judge Tolentino. Ntc. of Judge Assignment (July 24, 2024). On

9 July 29, 2024, the OAG filed its Objection. On July 31, 2024, Judge Tolentino filed his Answer

10 to Statement of Objection. Ans. To Stmt. of Obj action (July 31 , 2024) (the "Answer"). On August 11 1, 2024, this Court was designated as the Recusal Judge to rule on the Objection. Nth. of 12 Assignment of Recusal Judge (Aug. 1, 2024). On August 1, 2024, this Court issued its CR1.1 13 14 Form 3 taking the matter under advisement on the briefs. CR1.1 Form 3 (Notice of Hrg. or

15 Submission on Briefs (Aug. 1, 2024). On August 14, 2024, the People filed a "People's Response

16 to Judge Tolentino's Answer to Statement of Objection 7 GCA [sic]" (the "Response"). Response 17 (Aug. 14, 2024). Defendant has not joined in the People's Objection nor otherwise sought to 18 19 disqualify Judge Tolentino.

20 1. The Basis of TAG's Objection.

21 The gravamen of the OAG's Objection is that Judge Tolentino is disqualified from 22 0 . | .

presldlng over all cases involving the Office of the Attorney General based upon the mandate of 23 7 GCA § 6105(a) requiring the judge to "disqualify himself ... in any proceeding in which his 24 25 impartiality might reasonably be questioned ...." Objection at p. 2 (citing 7 GCA § 6105(a)). The

26 OAG alleges that "knowing all the facts and understanding the context involving Judge

27 Tolentino's history of disqualifying himself where the AG was involved, it is clear that Judge

28 Tolentino is a disqualified judge in any case where the AG Moylan is involved." Objection at p.

People v. Taimanglo, Crim'ulal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 5. Other than Judge Tolentino's past sue sponge refusals based upon AG Moylan's biological

2 relationship to his stepchildren - the last of which was nearly two years ago - the OAG alleges 3 no specific facts, asserted by someone with personal knowledge of such facts, which purportedly 4 invoke the provisions of Section 6105.1 Instead, the Objection only iterates the finding in People 5

6 v. Taitingfong et al., Superior Court Criminal Case No. CF0024-24 (June 4, 2024)(Iriarte, J.) that

7 Judge Tolentino was disqualified in that case based upon factors considered in that particular case.

8 Moreover, the "Verification" executed by Chief Prosecutor Rudolph purporting to be "true and 9 correct" also disavows the accuracy of "factual matters averred on information and belief."

10

11 Objection at p. 8.

12 Nevertheless, the Objection identifies two purportedly disqualifying factors, the first of

13 which places the blame squarely upon the Superior Court of Guam and the second upon a 14 "familial re lationship" be twe e n Ju dge Tole ntino and A ttorne y Ge ne ral Dou glas Moylan 15

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

17 Judge Tolentino to recuse himself, specifically:

18 (1) The Superior Court should have prevented Judge Tolentino from handling matters involving the Attorney General of Guam, as he had 19 previously disqualified himself sue sponge, from all matters involving 20 Douglas B. Moylan pursuant to 7 GCA § 6105 and 6106, and

21 (2) The familial relationship between Judge Tolentino and Attorney General Moylan which constituted the grounds for Judge Tolentino's sue 22 sponge disqualifications and have not changed. [sic]

23 Obj section at p. 2 (emphasis in original) .

24

25

26

27 1 The Court f`mds it significant that the allegations purportedly giving rise to a conflict are only advanced by Acting 28 Chief Prosecutor Rudolph and that no Declaration made under penalty of perjury by Attorney General Moylan .-. who is the only individual other than Judge Tolentino who would have firsthand knowledge of any ongoing "close personal relationship" between himself and Judge Tolentino - was submitted to provide a factual basis for the disqualification.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 Citing to the Guam Supreme Court case ofSan Agustin v. Superior Court ofGuam,2 the 2 OAG posits, "the Superior Court must align its process for assigning judges to the record of a 3 prospective judge's history of disqualification." Objection at pp. 6-7. In short, the OAG argues 4 that, in assigning cases to judicial officers, the Superior Court of Guam should disregard multiple 5

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

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

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

12 substantive and procedural disqualification provisions of 7 GCA §§ 6105 and 6106 and further

13 omit Judge Tolentino from the random assignment of cases which involve the OAG (including 14 criminal cases) because the judge previously refused himself from presiding over cases in which 15

Mr. Moylan represented a defendant on the grounds that Mr. Moylan "is the father of [his]

16

17 stepchildren." Objection at p. 2.

18 2. Judge Tolentino's Answer. 19 On July 31 , 2024, Judge Tolentino filed his Answer to Statement of Obj action ("Answer") .

20 His response is lengthy and detailed, and the Court Ends the following responses, made under 21 22 penalty of perjury, particularly relevant to this Court's recusal determination:

23

24

25 2 2024 Guam 2. Curiously, the first "factor" has less to do with Judge Tolentino's actions or purported inaction and seems to be more of an action to compel the Superior Court to "do" an act - that is, omit Judge Tolentino from the 26 case assignment procedures of the administrative rule based upon a disqualifying factor. This would seem to be more appropriate under a writ proceeding, possibly before the Guam Supreme Court, ironically akin to the writ proceeding 27 described in detail by the Guam Supreme Court inSan Agustin, the OAG's principal case.See, San Agustin at W 35-

41 .

28 3 Administrative Rule No. 24-001 (March 6, 2024). Section III of AR24-001 establishes the procedure for the assigmnent of cases. Section IV.A. addresses the assignment of cases upon the disqualification of a judge and the assignment of the recusal judge.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 11 6. That at Mr. Moylan's request, a meeting between him and the undersigned, the undersigned's chamber staff, the Administrator of the 2 Courts, and Mr. Moylan's transition chairperson, Mr. Wilfred Aflague, 3 occurred in December 2022,

4 117. That at this meeting, Mr. Moylan assured me and the other members in attendance that he perceived no conflict in his election as the Attorney 5 General and the prosecution of criminal cases before the undersigned. It was 6 agreed that the circumstances underlying my recusal in matters that Mr.

Moylan was a lawyer no longer existed, to wit: that during my term as the 7 Magistrate judge I had routinely reused myself from all matters where Mr. 8 Moylan was the attorney of a party before me on the basis that he was the father of my minor step-children and that the minor step-children were 9 members of and resided in the household maintained by me and my wife and that as of even date, both step-children have now reached Maj rarity and 10 adulthood and have been residing at their own residences in Guam and in 11 the U.S. Mainland,

12 1]8. That Mr. Moylan never made an appearance as a lawyer in this case,

13 119. That neither Mr. Moylan nor the Office of the Attorney General had 14 ever challenged or objected to me presiding over this case until the instant Statement of Objection and Motion to Disqualify filed herein, 15

1[ 12. That additionally movant has not explained why or how the fact that 16 Mr. Moylan is the biological father of the undersigned's stepchildren 17 requires disqualification of the undersigned,

18 'll 14. That my wife Doris L.G. Tolentino and Attorney General Moylan were divorced on June 13, 1997, and that there were two minor children at 19 the time of the dissolution of marriage, to wit: Brandon (born 1990) and 20 Angela (born 1992);

21 11 15. That my wife and I have been together since 2001 and that we were married civilly in 2005 and eventually in the Roman Catholic Church in 22 December 2023,

23 11 17. That since my wife and I have been together I have never observed 24 Mr. Moylan and my wife involved in any sense in co-parenting the children of their marriage as the children have been raised and provided with 25 protection and care to ensure their healthy development into adulthood, 26 primarily by my wife and me, and that they are in fact adults able to conduct and make their own decisions in life, 27

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

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 5 of23 1 provides no basis for disqualification under 7 GCA § 6105(b) or that the undersigned's "impartiality might reasonably be questioned" as required 2 under subsection (a) ,

3 11 19. That "[u]nder subsection 6105 (a), what matters is not "actual bias"

4 but "the appearance of bias." Van Dox at 1132 (citing Dizon v. Super. Ct.

(People), 1998 Guam 3 11 10 n. 3). The appearance of bias is judged from 5 the standard of a "reasonable person" who knows a11 the facts, and 6 understands the "contexts of the jurisdictions, parties, and controversies involved," including such "realities of the Guam judicial system" as the 7 relatively small number of lawyers in the Guam bar and "the nature of Guam families." Id (citation omitted).

8

9 11 30....The recusal judge [in People v. Taitingfong,] did not carefully examine or consider the realities that my wife and Mr. Moylan have been 10 divorced for close to twenty-seven years and that the children of their 11 marriage are adults living on their own and well over the age of majority and that no reasonable person who knows all the facts and understands the 12 contexts of the jurisdiction, parties and controversies involved in the Guam judicial system would conclude that there exists an appearance of bias 13 requiring my disqualification in this matter. .

14 Answer at W6- 9, 12, 14, 15, 17 .-. 19, 30.

15 3. The People's Response.

16

17 On August 14, 2024, the OAG filed an unsolicitedPeople 's Response to Judge Tolentino 's

18 Answer to Statement of Objection 7 GCA [sic], arguing that (1) the OAG's Objection is timely

19 because it was filed and sewed upon Judge Tolentino on July 29, 2024 - five (5) days after the 20 judge was assigned to preside over this matter on July 24, 2024, and (2) that Judge Tolentino is 21 22 biased per Se pursuant to California Code of Civil Procedure CCP § 170.1, which "specifically

23 states that judges married to the ex-wives of lawyers appearing before them are disqualifiable."

24 Response at p. 3. The Response does not address or contest any of the averments in Judge 25 Tolentino's Answer, but simply repeats that "given the significant and continuing relationship he 26 has with AG Moylan's ex-wife and children" he is disqualified from all cases involving Attorney 27

28

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA §6107 and Motion to Disqualify 1 General Moylan and, therefore, the Office of the Attorney General. An Amended Response was

2 submitted on August 15, 2024. 3 DISCUSSION AND ANALYSIS

4 A. The Law Governing Judicial Disqualification Is Set Forth in Guam Statute and In 5 the Model Code of Judicial Conduct.

6 1. Guam Statutory Mandates.

7 Judicial disqualifications are governed by the substantive rules of 7 GCA § 6105 and the 8

9 procedural rules of 7 GCA §§ 6106 and 6107. The relevant portion of the disqualification statute

10 is Section 6l05(b)(5), which requires that: 11 (b) A Judge shall also disqualify himself or herself in the following 12 circumstances, but if, following complete disclosure to all parties in the proceeding of the reasons for his or her disqualification, all parties agree to 13 having the Judge continue to sit in the proceedings, he or she need not 14 disqualify himself or herself:

15 (5) Where he or she or his or her spouse, or a person within the third degree of relationship to either of them, or the spouse of such 16 person:

17 (A) is a party to the proceeding, or an officer, director, or trustee of a party,

18 (B) is acting as a lawyer in the proceeding .4

19 Correspondingly, Section 6106 compels a judge to disclose a disqualification enumerated under 20 610535 21 Whenever a Justice or Judge shall have knowledge of any fact or facts 22 which, under the provisions of 6105 of this Chapter, disqualify him or her 23 to sit or act as such in any action or proceeding pending before him or her, it shall be his or her duty to declare the same in open court and cause a 24 memorandum thereof to be entered in the minutes. It shall be the duty of the clerk to transmit forthwith a copy of such memorandum to each party or his 25 or her attorney who shall have appeared in such action or proceeding, except 26 such parties as are presented in person or by attorney when the declaration

27

28 4 7 GCA § 6105(b)(5) (emphasis added). 5 7 GCA § 6106 (emphasis added).

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 is made. 2 If a judge fails to disclose a disqualifying factor under Section 6105, then, pursuant to 3 Section 6107, any party to the action who has appeared in the case may raise the objection to 4 competency.6 In this regard, Section 6107 provides, in relevant part, as follows:

5

6 Whenever a Justice or Judge whoshall be disqualified under the provisions of this Chapter to sit or act as such in any action or proceeding pending 7 before him or her neglects or fails to declare his or her disqualification in the manner provided by this Chapter, any porgy to such action or 8 proceeding who has appeared therein may present to the court and file with 9 the clerk a written statement objecting to the hearing of such matter or any trial of any issue of fact or law in such action or proceeding before such 10 Justice or Judge, and setting forth the fact or facts constituting the ground 11 of the disqualification of such Justice or Judge. Copies of such written statement shall forthwith be sewed by the presenting party on each party, 12 or his or her attorney, who has appeared in the action or proceeding and on the Justice or Judge alleged in such statement to be disqualified.

13

14 Within ten (10) days after the service of such statement as above provided, or ten (10) days after the filing of any statement, whichever is later in time, 15 the Justice or Judge alleged therein to be disqualified may file with the clerk his or her consent in writing that the action or proceeding continue without 16 him or her, or may file with the clerk his or her written answer admitting or 17 denying any or all of the allegations contained in such statement and setting forth any additional fact or facts material or relevant to the question of his 18 or her disqualification. The clerk shall forthwith transmit a copy of the Justice's or Judge's consent or answer to each party or his or her attorney 19 who shall have appeared in such action or proceeding. Every such statement 20 and every answer shall be verified in the manner prescribed for the verification of pleadings. The statement of party objecting to the Justice 21 or Judge on the ground of his or her disqualyication shall be presented at the earliest practicable opportunity after his or her appearance and 22 discovery of the facts constituting the ground of the Justice's or Judge's 23 disqualification, and in any event before the commencement of the hearing of any issue offset in the action orproceeding before such Justice 24 or Judge. 25 No Justice or Judge who shall deny his or her qualification shall hear or pass 26 upon the question of his or her own disqualification, but in every case the question of the Justice's or Judge's disqualification shall be heard and 27 determined by some other Judge. The Presiding Judge, or next senior Judge, 28

6 7 GCA § 6107 (emphasis added).

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 if it is the Presiding Judge's disqualification that is being requested, shall make such assignment within five (5) days after receiving from the clerk 2 the notice that the statement of disqualification has been filed. In the case 3 of a Justice's disqualification, the matter shall be heard by the Supreme Court constituted without the questioned Justice.

4 If such Judge admits his or her disqualification, or files his or her written 5 consent that the action or proceeding be tried before another Judge, or fails 6 to file the answer within the ten (10) days allowed, or if it shall be determined after the hearing that he or she is disqualified, the action or 7 proceeding shall be heard and determined by another Judge of the Superior Court who is not disqualified. Such other Judge shall be assigned in the 8 same manner as the Judge who was disqualified was assigned to hear the 9 case initially.

10 2. Model Code of Judicial Conduct: Canon 3 11 Canon 3 of the Model Code of Judicial Conducts (the "Model Code") mandates that "[a]

12 judge shall perform the duties of judicial office impartially and diligently," and 3E.(l)(d)(i) and 13

14 (ii) of the Model Code's disqualification factors mirror those of 7 GCA § 6105(b)(5)(A) and (B):

15 E. Disqualification.

16 (l) A judge shall disqualify himself or herself in a proceeding in which the judge's 17 impartiality might reasonably be questioned, including but not limited to instances where:

18 (d) the judge or the judge's spouse, or a person within the third degree of relationship* to either of them, or the spouse of such a person:

19 (i) is a party to the proceeding, or an officer, director or trustee of 20 a party;

(ii) is acting as a lawyer in the proceeding, 21

22

23

24

25

26 7 The ABA's Canon of JUdicial Ethics shall apply to and govern the conduct of Judges of the Superior Court of Guam.

27 7 GCA § 6103. The Model Code of Judicial Conduct applicable in Guam was adopted by the House of Delegates of the American Bar Association on August 7, 1990, and amended on August 6, 1997, August 10, 1999, and August 12:

28 2003. It is hereinafter referred to as the "Model Code."

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 B. The OAG has waived its right to object to Judge Tolentino's qualification to preside over cases involving the Office of the Attorney General.

2

3 As highlighted, above, Section 6107 requires that the statement of a party objecting to the

4 Ju dg e on the g rou nd of hi s di sq u al i fi cati on shal l be presented "Q the earliest practicable

5 opportunity after his Q; her appearance and discovery the facts constituting the ground Q the 6 Justice's Q Judge's disqualification, and in any event before the commencement of the hearing of 7 8 any issue of fact in the action or proceeding before such Justice or Judge." 7 GC A § 6 1 0 7

9 (emphasis added). The Guam Supreme Court in Van Dex has confirmed that statements of

10 objection shall "be presented at the earliest practicable opportunity after discovery of the facts 11 constituting the ground for disqualification." Van Dox u Super Co. (Alcorn), 2008 Guam 7 1144.

12 Thus, the controlling law in Guam "[w]ith respect to the statutory provision requiring that 13

disqualification be urged at the 'earliest practicable opportunity] the intention is 'clear that failure 14

15 to comply with the provision constitutes a waiver.'" Id ii 45 (quoting Cam inetti V Pay. Mai. Ins.

16 C o . o f f a l , , 139 P.2d 930, 933 (Cal. 1943) (emphasis added)). A finding of timeliness should be 1 7 construed liberally in the interest of justice. Id 1145 (citing E a gle Ma i n s. & Su p p ly C o. v Su p er 18 Co., 16 Cal. Rptr. 745, 747 (Dist. Ct. App. 1961)). A timely statement of objection is made "prior 19 20 to any hearing before the challenged judge in the matter." Id 1]46 (citing Ho llingswort h, 236 Cal.

21 Rptr. at 195-96). Van Dox also cites t o P e o p l e u P a r i a h , where the court held a disqualification

22 untimely because the facts of the case were known in early September, but the moving party 23 waited until the eve of trial in November to move for disqualification. Id 1146 (citing P e o p l e v 24 25 Pa ri a h, 107 P.3d 790, 824).

26 More recently, in P e o p l e u W i n , 2020 Guam 17, the Guam Supreme Court applied the

27 "silence-by-waiver" rule adopted in S a n U n i o n , I n c . v A r n o l d , 2017 Guam 10, and held that 28 I . ¢ .

"[r]ather than mterpretmg "agree" to mean that the parties must expressly agree to walve the

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 judge's disqualification, we held that remaining silent constitutes waiver, at least in the context of 2 7 GCA § 6105(a), "[t]o avoid the possibility of parties 'l[ying] in wait, raising the recusal issue 3 only after learning the court's ruling on the merits.' " Id (quoting Phillipe v Amoco Oil Co., 799 4 5 F.2d 1464, 1472 (nth Cir. 1986), cert. denied, 481 U.S. 1016 (1987)). Thus, Guam allows for the

6 waiver of Section 6105(b) coritlicts by the silence of the party who sits on his right to object. Id

7 at1[29.8 8 In his Answer, Judge Tolentino raised the issue of timeliness, stating "[t]hat neither Mr.

9 Moylan nor the Office of the Attorney General had ever challenged or obi ected to me presiding 10

11 over this case until the statement of objection and motion to disqualify..." Answer at 119. That is

12 to say, the OAG and Mr. Moylan knew since their meeting in December 2022, that Judge

13 Tolentino would be assigned to preside over criminal cases which Mr. Moylan, as the Attorney 14 General of Guam, would bring in the name of the People of Guam. Despite its urging that the 15

16 Court apply the reasonable person standard who has "knowledge of all the facts," it is significant

17 that the OAG does not challenge Judge Tolentino's description of a meeting held between them

18 and their staff in December, 2022, where the judge and Mr. Moylan discussed the precise question

19 of whether a conflict would exist "in [Mr. Moylan's] election as the Attorney General and the 20 pr osecution of cr imina l ca ses befor e the under signed" a nd "[i]t wa s deter mined tha t the 21 22 circumstances underlying my recusal in matters that Mr. Moylan was a lawyer no longer existed."

23 Answer at W 6, 7.

24

25

26

27 8 See also, Clarette v. Clarette, 60 A.3d 1264, 1270-1271 (Maine 2013) (judge had hired a party's brother-in-law to do construction work for him and his daughter was close friends with the same party's daughter, opposing party should 28 have raised an objection based upon the appearance of impropriety before the court issued a judgment unfavorable to him, the appellate court finding that the facts were known to the party because they occurred over the course oftwentyseven years while all were living in the same small community).

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 11 of23 1 Thus, it is uncontroverted that, since 2022, Mr. Moylan and the OAG knew that Judge

2 Tolentino is assigned by the Superior Court of Guam, applying the Administrative Rule, to preside 3 over criminal cases which are brought in the name of the People of Guam by the OAG, through 4 Attorney General Moylan. Based upon the "silence-by-waiver" rule most recently reiterated in 5

6 Win, the OAG is barred from complaining - for the first time in nearly two years since Mr. Moylan

7 assumed office - that Judge Tolentino is disqualified because of Mr. Moylan's biological

8 relationship to Judge Tolentino's stepchiIdren.9 9 Although the Court finds that the OAG has waivedany right to object to Judge Tolentino's 10

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

12 General Moylan represent the People or a party, because the OAG continues to raise the issue of

13 the "relationship" between Attorney General Moylan and Judge Tolentino/his 14 spouse/stepchildren in over fifty (50) criminal cases assigned to Judge Tolentino, the Court now 15

addresses the substance of the Objection.

16

17 c. Judge Tolentino is not related to Attorney General Moylan either by consanguinity or affinity within any degree; therefore, there is no relationship to disclose under 18 Guam Law or the Model Code. 19 The threshold question in determining whether Judge Tolentino is disqualified under 20 Section 6105(b)(5)(A) or (B) is whether he (or his spouse) is related within three degrees to a 21 22 party to the proceeding or to a lawyer to the proceeding. A familial relationship may be

23 established by consanguinity or affinity. If established by consanguinity, it is a relationship by

24 ties of blood, if established by affinity, it exists between one spouse and the consanguinity of the 25

26

27 9 See, this Court's Decision and Order Denying the OAG 's Statement of Objection and Motion to Disqualtfv in People 28 v. Ybanez, Superior Court of Guam Criminal Case No. CF0447-23 (Jun. 12, 2024), which rejects the Objection filed therein by the OAG as procedurally defective. It is unknown why the OAG fails to acknowledge or discuss Ybanez, which reached a diametrically opposed conclusion to the decisions of the courts in Aguon and Taitingtong.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA §6107 and Motion to Disqualify 1 other.1° Thus, "consanguinity" measures the relationship by blood and "affinity" measures the 2 relationship by marriage. 11 3 The disqualification provisions of Section 6105 and Canon 3 of the Model Code bar a 4 5 judge from presiding over matters where the judge or his spouse is within three degrees of

6 relationship (e.g., consanguinity or affinity) to a party or a lawyer in the proceeding. 7 GCA §

7 6105(d) provides that "[t]he degree of relationship is calculated according to the civil law 8 system,"l2 and "third degree of relationship" is defined in the Model Code as the "great-

9 grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, 10

11 nephew or niece."13 Neither Judge Tolentino nor his wife are related by blood or origin

12 (consanguinity) nor by marriage (affinity) to Attorney General Moylan as Mr. Moylan does not

13 fall Linder any of these relationships.

14 Extending the "third degree of relationship" beyond that which is contained in the Model 15 Code to include relationship by a]j'init;v (marriage), Attorney General Moylan is not related by 16

17 affinity to either Judge Tolentino o r the judge's spouse. The "relationship" between Judge 18 Tolentino and Attorney General Moylan is best illustrated by the legal maxim of "ajinis Mei 19 ajj'inis non est mini ajfinis " or "A relative of my relative by marriage is not my relative." Suggs 20 v. State, 51 N.E.3d 1190, 1194-1195 (Indiana 2016) (quoting Ballentine's Law Dictionary with 21 Pronunciations 45 (ad ed. 1969)). More clearly stated, in determining whether two persons are 22

23

24 10 See, generally, 46 Am. Jr. ad Judges § 112 (Aug. 2024).

11 Id (citing Alabama State Personnel Ba V Garner, 4 So.3d 545 (Ala. Civ. App. Ct. 2008)). See also,Suggs v. State, 25 51 N.E.3d 1190, 1194 (Indiana 2016) ("Related by marriage" is commonly referred to as affinity, which is defined as 'the connection existing in consequence of marriage .between each of the married persons and the kindred of the other.

26 It is distinguished from consanguinity, which denotes relationship by blood."') (citation omitted).

12See, Alabama State Personnel Bal, supra ("The civil law method of computing degrees of kinship is to begin the 27 count with one of the persons in question and proceed up to the common ancestor and then down to the other person, calling it a degree for each person both ascending and descending. The number thus counted expresses the degree of 28 kinship.") (finding no duty to recuse because judge and attorney in case were not related within the required degree).

13 See Model Code, Attachment A at p. 10 ("Terminology"),

People v. Taimanglo, Criminal Case No. CM02I5-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 related by affinity, or marriage, "the relationship does not exist where more than one marriage is 2 required to establish it." Johnson v. State, 169 Tex.Crim. 146, 147, 332 S.W.2d 321, 322 (Tex.

3 Ct. Crum. App. 1960). Thus, Judge Tolentino is not related to Attorney General Moylan within 4 any degree of affinity or relationship.

5

6 Moreover, the dissolution of the marriage between Judge Tolentino's wife and Attorney

7 General Moylan over twenty years ago also terminated the "affinity" between the former spouses 8 resulting from such marriage. Herrera v. Hernandez, 80 Ca1.Rptr.3d 491, 494 (Cal. Ct. App. 6th 9 Dist. 2008) (dissolution of marriage terminates affinity between parties arising from such 10

11 marriage for purposes of determination of whether a juror is subj et to challenge for bias even if

12 the for mer spouses ha ve a child together ). Consequently, while Judge T olentino a nd his

13 stepchildren end ay a relationship of affinity in the first degree to each other by virtue of the judge's 14 marriage to their m0ther,l4 there is absolutely no relationship to any degree between Judge 15 Tolentino and Attorney General Moylan. Consequently, the provisions of Section 6105 do not 16

17 apply. 15

18 D. The OAG has provided no legal authority nor factual averments necessary to establish a relationship requiring disqualification or recusal under Section 6105.

19

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

21 CF0024-24 (Jun. 4, 2024) (Iriarte, J.), and in People vs. San Agustin, 2024 Guam 2 in support of 22

23

24 14 In re Joseph & Sally Grablicn Trust, 984 N.W.2d 517, 552-553 (Mich. Ct. App. 2021) (citing Bliss v. Caille bros.

25 Co., 113 N.W. 317 (Mich. 1907) ("when a couple marries, each spouse becomes related by affinity to the other spouse's blood relatives by the same degree") (emphasis added)).

26 15 Attorney General Moylan is not a "party" to the criminal proceeding under Section 6l05(b)(5)(A), but merely a representative of the People, who, along with the Defendant, are the only "party" to the criminal case. See, People v.

27 Robinson, 27 Misc.3d, 635, 637, 898 N.Y.S.2d438, 439 (Sup.Ct. 2010)("the only parties to criminal litigation are the People, represented by the district attorney of the county, and the accused, represented by assigned or retained 28 counsel."), 5 GCA § 30103("The Attorney General shall have the right to bring action on behalf of Guam representing the citizens as a whole for redress of grievances which the citizens individually cannot achieve....." As such, Section 6105(b)((5)(A) does not apply because Judge Tolentino is not related within three degrees to a party.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 its Objection. However, neither case provides legal support for the finding that Judge Tolentino 2 is disqualified from presiding over cases in which the OAG is involved, as both can be 3 distinguished from the case before this Court. 16 Curiously, Acting Chief Prosecutor Rudolph fails 4 to cite or discuss this Court's Decision and Order Denying the OAG's Statement of Objection 7 5

6 GCA §6107And Motion to Disqualyjf in People vs. Ybanez, Superior Court of Guam Criminal

7 Case No. CF0447-23 (Jun. 12, 2024) in its Objection despite Ms. Rudolph having filed the 8 Objection in that case and being served with the Court's decision denying the same."

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

10

11 The OAG misapplies the holding of the Guam Supreme Court in San Agustin, which is

12 largely procedural. Summarized in its most simple form, the rule in San Agustin is that a judge

13 who is disqualified from presiding over a case must also be disqualified from serving as the 14 recusal judge in the same case. San Agustin at 'H 36 ("We exercise our supervisory authority to 15 clarify that a disqualified judge should not be appointed as a recusal judge.")~ San Agustin does 16

17 not, as the OAG contends, extend in any way to SLlppoI't a Ending that Judge Tolentino is

18

19

20

21

22 16 In both cases, the Defendant, not the OAG filed the Objection. Moreover, trial courts are not bound by the decisions 23 of other trial courts' ruling on the same issue, therefore, this Court does not adopt the ruling inTaitingfong. Although San Agustin is controlling law in this Court, it is inapplicable in this case because it does not involve the circmnstances 24 addressed by the Guam Supreme Court in San Agustin.

17See, Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 And Motion to Disqualyjl in 25 CF0447-23 (Jun. 12, 2024), which was sen/ed upon the OAG via Email on June 12, 2021,Notice ofEntr;v on Docket of Decision and Order Denying the OAG 's Statement of Objection 7 GCA §6107 And Motion to Disqualyjf (Jun 13, 26 2024) which was sewed upon the OAG via mail on June 13, 2024. There is no explanation for the glaring omission of this Court's Decision in Ybanez from the OAG's Objection and less of an excuse for is absence given that the 27 OAG's Response contains a brief mention of this Court's Decision, without discussion or cursory attempt at distinction. See Response at p. 3. Ms. Rudolph is reminded that Rule 3.3 of the Guam Rules of Professional Conduct 28 mandates a lawyer practice candor toward the tribunal and not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client. It is insufficient that the Response contain a subtle nodto Ybanez as "disqualification was denied in one matter." Response at p. 6.

People v. Taimanglo, Criminal Case No. CM0215~24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 15 of23 1 disqualified in the instant case or in all cases involving Attorney General Moylan. Neither that 2 question nor one remotely like it was before the Guam Supreme Court inSan Agustin. 18 3 2. The Court's Decision and Order in Ybanez applies here.

4 In People v. Ybanez et al., Superior Court of Guam Criminal Case No. CF0447-23 (Jun.

5

6 12, 2024), this Court rejected the OAG's Motion to Disqualify Judge Tolentino on identical

7 grounds, findingz19 8 Judge Tolentino's spouse is not a party to the proceeding, or an officer, 9 director, or trustee of a party. She is not acting as a lawyer in the proceeding, nor known by the Judge to have an interest that could be substantially 10 affected by the outcome of the proceeding. She is not, to the Judge's 11 knowledge, likely to be a material witness in the proceeding. Therefore, none of these circumstances applies to Judge Tolentino to invoke the 12 mandatory disclosure requirements of Section 6106.

13 This Court ruled further that Judge Tolentino's prior recusals due to Mr. Moylan's 14 biological relation to his stepchildren did not mandate his disqualification under the 15 circumstances, particularly where there is no allegation of a conflict other than the mere fact of a 16

17 familial relationship between Mr. Moylan and the judge's stepchildren:

18 ...[I]n considering disqualification under Section 6105(a), "what matters is not 'actual bias,' but the 'appearance of bias."' Van Dox ii 32, citing Dizon 19 v. Super Cf., 1998 Guam 3 ii 8. In evaluating the OAG's claims, this Court 20 assumes as true all evidence found in the record and in the Objection, even if uncorroborated by additional evidence, and applies "the standard of a 21 'reasonable person' who knows all the facts, and understands the contexts ofthejurisdictions, parties, and controversies involved..." Id 1132, quoting 22 Ada v. Gutierrez, 2000 Guam 22 W 12-13. Moreover, "[a] court should not 23

24 18 In San Agustin, Judge Tolentino voluntarily reused himself from hearing the criminal matter due to a close personal 25 relationship with both defendants in that case. As distinguished from the 'instant matter, the conflict involved parties to the criminal proceeding, not Attorney General Moylan, who is not a party in this case. See, fn. 15, supra. Mor e 26 importantly,San Agustin addressed whether Judge Tolentino, who had previously reused himself from presiding over the trial court case, was also disqualified from sitting as the recusal judge in the same case. The Supreme Court simply 27 decided, as to Judge Tolentino's recusal decision, "Under 7 GCA § 6107, a disqualified judge lacks the power to hear and determine the matter. Once disqualified, a judge can take no action - even when acting in a limited capacity as a 28 recusal judge." The substantive question of disqualification involved facts very specific to Presiding Judge Alberto C.

Lamorena III and Attorney General Moylan and, therefore, are distinguished on those facts from application here. 19 The Court incorporates its Decision in Ybanez herein as if fully set forth.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 16 of23 1 hypothesize about what the reasonable person would believe only upon the moving party's allegations. Instead, it should decide what the reasonable 2 person would believe about a judge's partiality given all the relevant facts 3 in the controversy." Ada 1112.

***

4 In the instant case, the non-disclosure of the relationship complained of by 5 the Office o f the Atto rney General d id no t fall within the sp ecific 6 disqualification provisions of 7 GCA § 6105(b), therefore, Judge Tolentino was not required to disclose and seek any waivers or agreements from the 7 parties under Section 6016. As such, the Court DENIES the Objection of 8 the OAG to Judge Tolentino's competency on these grounds."

9 Despite filing a Response to Judge Tolentino's Answer on August 14, 2024, just a few weeks

10 after the Ybanez Decision, the OAG failed to address this Court's ruling therein or otherwise 11 proffer a good faith argument to rule differently in this case." Thus, the Court's ruling Ybanez is 12 as applicable to the instant case despite the OAG's urgings to adopt Ta itingjong and San Agustin.

13

14 3. Judge Tolentino is not biased per sh.

15 In its Response to Judge Tolentino's Answer, the OAG argues that Judge Tolentino is

16 "Biased, Per Se." Response at p. 3. However, the OAG provides no sound legal authority in 17 support of this bare assertion. Indeed, the Court is gravely concerned that the arguments 18 19 advancing this position completely misrepresent the current state of the law by arguing a position

20 that was clearly rejected by the drafters of the statute mandating disqualification. In the 1985

21 Comment to Section 6105(b), the Compiler noted: 22 1985 COMMENT: This drafter has heard many comments from attorneys 23 who have objected to the procedure provided in the Guam CCP. Many attorneys have shown a preference for the California method of determining 24 disqualifications. However, the California CCP, § 170, is adapted to the multiple-court system in California. Such a system cannot be transferred 25 without change to Guam because of our unified, single court system.

26

27 20 See, Ybanez at pp. 13-15.

28 21 A single clause in the Response acknowledges the birth of the birth of the Ybanez decision, but proffers nothing more by way of discussion or distinction. See Response at p. 3 ("...and disqualification was denied in one matter, i.e.,People v. Richard K Ybanez, et al., CF0447-23....").

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 Therefore, this Section adopts those portions of California §170 which deal with the procedure, but not substance of judicial disqualifications 2 and they have been adapted to Guam.

3 Not included is an equivalent of California CCP § 170.6 - relative to 4 disqualification for prejudice. Under this law, an attorney could, by tiling an affidavit only, require that a judge recuse himself. After receiving 5 comments on both sides of this question, this drafter believes that the 6 foregoing sections provide adequate relief for judicial bias, prejudice and conflict of interest. Q l gig. California permitting automatic 7 disqualification upon @ affidavit Qfprejudice could,Q practice, result Q Qg _go making Q facto assignments gr judges @ [ Q Court.

8 procedure provided here allows Q unbiased review gr disqualification, 9 M does@ permit automatic disqualification without fudge's having met specific grounds g disqualification.

10

11 (emphasis added).

12 It is incontrovertible that Cal Civ Pro § 170.1 is not identical to Guam's statute. The Guam

13 Legislature did not adopt the requirement that a judge recuse him or herself automatically where 14 a lawyer in the proceeding is the former spouse of the judge's spouse. A plain review of the 15

16 California statute would reveal this glaring difference.

17 § 170.1. Grounds for disqualification. (a) A judge shall be disqualified if any one or more of the following are true: * * * 18 (4) The judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to 19 the proceeding or an officer, director, or trustee of a party.

20 (5) A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge's 21 spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding.

22

23 Cal. Civ. Proc. Code § 170.1 (West) (emphasis added).

24 In contrast, Guam's judicial disqualification statute 7 GCA §6105(b)(5)(A) and (B) reads : 25 (5) Where he or she or his or her spouse, or a person within the third 26 degree of relationship to either of them, or the spouse of such person:

(A) is a party to the proceeding, or an officer, director, or trustee of 27 a party;

28 (B) is acting as a lawyer in the proceeding, .

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 18 of23 1 Not included in Guam's statute is paragraph (5) of the California Code: "A lawyer or a 2 spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the 3 judge or the judge's spouse or if such a person is associated in the private practice of law with a 4 lawyer in the proceeding." To argue that this is a procedural distinction, rather than a substantive 5

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

7 automatic disqualification provisions where a former spouse of the judge's spouse appears as a 8 lawyer in a proceeding before it. The OAG has not provided any legal authority to support a 9 finding that the Guam Legislature intended to adopt the same provisions despite the clear 10

11 omission of the language in Section 6105.

12 4. Under an "objectively reasonable person" standard and considering the American Bar Association's Formal Opinion 488, Judge Tolentino was not required to 13 disqualify himself in this case.

14 Finally, the Court addresses the "objectively reasonable person" standard requirement in 15 16 viewing the disqualification question in this case. The OAG correctly states the legal standard

17 applicable in determining whether a judge must be disqualified under the provisions of Section

18 6105, quoting San Agustin: "A court should not hypothesize about what the reasonable person

19 would believe about a judge's partiality given all the relevant facts in the controversy. Under 20 this objective test, 'the court asks whether a person with knowledge of all the facts would 21 22 perceive a significant risk that the judge will resolve the case on a basis other than the merits.ala

23 Objection at p. 4 (quoting San Agustin at 1 23) (emphasis added). Judge Tolentino's detailed

24 Answer provides relevant facts establishing that no close personal relationship exists between 5 I 1 u 2 himself and Attorney General Moylan, nor between Judge Tolentlno's wife and Mr. Moylan. The 26 OAG's Objection and Response only declare, without citing specific facts, that a close personal 27 28 relationship exists.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 19 of23 1 In its Formal Opinion 488 (Sept. 5, 2019), the American Bar Association, considering

Judges' 0bl1gat10n to dlsquahfy themselves in proceedings in whlch they have soclal or close 3 personal relationships with the lawyers or parties other than a spousal, domestic partner or other 4 close family relationship, looks to Rule 2.11 of the Model Code of Judicial Conduct ("Model 5

6 Code") requiring disqualification "because their impartiality might reasonably be questioned."

7 ABA Formal op. 488 at 1 (Sept. 5, 2019) (citing n.y. Jud. Adv. Op- 11-125, 2011 WL 8333125 '8 *4 (Oct. 27, 2011). In this regard, the ABA opined that "Judges are ordinarily in the best position 9 to assess whether their impartiality might reasonably be questioned when lawyers or parties with 10

11 whom they have relationships...appear before them." Id. However, the ABA notes that "in

12 smaller communities and relatively sparsely-populated judicial districts, judges may have social

13 and personal contacts with lawyers and parties that are unavoidable. In that circumstance, too 14 strict a disqualyication standard would be impractical to enforce arzd would potentialiy disrupt 15

16 the administration of justice." Formal Op. 488 at 2 (emphasis added). The ABA also recognized

17 that over time relationships change "or may have ended sufficiently far in the past that it is not a

18 current concern when viewed objectively." Id. "Finally, judges must avoid disqualifying

9 themselves too quickly or too often lest htlgants be encouraged to use d1squal11icat1on motlons as 20 a means ofjudge-shopping, or other judges in the same court...become overburdened." Id.

21 The Formal Opinion tracks the rationaleof San Agustin, wherein the Guam Supreme Court 22

23 declared, "Our recusal statute promotes fairness by avoiding the appearance of bias, but a party's

24 one-sided perception of an appearance of bias is not grounds for disqualification."San Agustin at 25 | , 1 I n l .

1] 25. The OAG advances its Objectlon solely on a "familial relatlonshlp" and a clan by Chlef 26 Prosecutor Rudolph that this relationship is "significant and continuing" without any facts 27 28 presented to illustrate this condition. This is simply not enough.

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 Adopting the recommendations of the ABA in its Formal Opinion 488, and, based on the

2 objective reasonable person standard and considering the Answer tiled by Judge Tolentino and 3 the judicial community and the lack of factual support provided by the OAG, as well as the context 4 in which the disqualification is sought, the Court makes the following findings :

5

6 1. Other than the mere fact of a biological relationship between Attorney General Moylan

7 and Judge Tolentino's stepchildren, there is no credible evidence of any relationship 8 - within three degrees or otherwise .-. between Mr. Moylan and Judge Tolentino.

9 2. The circumstances since October, 2022 under which Judge Tolentino disqualified 10

11 himself voluntarily have changed, and there is no evidence to contradict Judge

12 Tolentino's description of the meeting between Attorney General Moylan, the AG's

13 staff, Judge Tolentino and court staff affirming that any conflict relating to the familial 14 association which previously existed between Judge Tolentino and Attorney General 15

Moylan "no longer existed," therefore, Judge Tolentino is not required to disqualify 16

17 himself under Section 6105,

18 3. Neither Judge Tolentino nor his spouse (as the former wife of Attorney General 19 Moylan) are within the third degree of relationship to any party to the proceeding nor 20 to anyone acting as a lawyer in the proceeding, as there is no legal authority cited by 21 the OAG which affirms a relationship within three degrees after the termination of a 22

23 marriage, which is a relationship by affinity,

24 4. Attorney General Moylan is not a "party" to the proceeding, but a representative of 25 the People of Guam in matters brought in the name of the People of Guam, 26

27

28

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify Page 21 of23 1 5. Attorney General Moylan and Mrs. Tolentino's children are now grown adults living 2 on their own, which poses a significant change in relationships distancing Judge 3 Tolentino from Attorney General Moylan, 4 6. There is no evidence of a "close personal relationship" between Mr. Moylan and Judge 5

6 Tolentino requiring disqualification under Section 6105 or the Model Code,

7 7. In this small legal community in Guam and with a trial court bench consisting only of 8 four (4) dedicated criminal court dockets, requiring Judge Tolentino, who is one of the 9 four (4) judges assigned to the criminal docket, to disqualify himself pursuant to 10

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

12 of Guam would (a) be impractical to enforce, (b) negatively impact the efficient

13 administration of justice, and (c) lead to judge-shopping and/or overburden other 14 judges in the same court."

15 Having made the following findings, the Court finds that Judge Tolentino is not required 16

17 to disqualify himself under Section 6105(a) and rejects the OAG's Objection.

18

19 22 Indeed, the filing by the OAG of over fifty (50) identical Objections to Judge Tolentino's assignment 'm criminal 20 cases has had a significant negative impact on the caseload of the three remaining dedicated criminal courts. For example, asserted speedy trial cases in which Judge Tolentino was assigned pursuant to the Administrative Rule were 21 reassigned to other criminal judges due to the running of the speedy trial clock. In CF270-24, People v. Michael Gregory Royal, this Court was assigned to take the matter to trial with only four days remaining on his speedy trial 22 clock. See. Min. of Aug. 2, 2024 Hrg. at 9:22:26 AM. On August 2, 2024, despite that the matter had been pending before Judge Tolentino since May 24, 2024, and the Defendant having asserted his right to speedy trial on June 21, 23 2024, the People were unprepared for trial and failed to file any witness lists by the Pre-trial Conference. On August 2, 2024, the People tiled a Memorandum Supporting People's Motion to Dismiss Without Prejudice in the Interest of'

24 Justice and the Court granted the dismissal but has reserved on the issue of whether it will be dismissed with or without prejudice. Id The Court expresses grave concern about whether these Objections have been tiled by the OAG in good 25 faith. In at least one case assigned to thisCourt, People of Guam v. Prima Sebastian, Criminal Case No. CF0506-24, the Objection, filed on July 29, 2024, was pending this Court's determination as recusal judge (see Ntc. of Assign1nent 26 of Recusal Judge (Jul. 31, 2024) and CRl.1 Form 3 (Aug. l, 2024)) when the People filed a Motion to Dismiss on August 12, 2024. Despite the August 12, 2024 Motion to Dismiss, on August 13, 2024, the People filed a Response 27 to Judge Tolentino's Answer. One might contemplate that perhaps the assigned prosecutor filed the Motion to Dismiss without Chief Prosecutor Rudolph being aware of the Motion when she filed the Response. However, Chief Prosecutor 28 Rudolph filed both the Motion to Dismiss on August 12, 2024, and the Response on August 13, 2024. Magistrate Judge Jonathan Quan granted the Motion to Dismiss on August 13, 2024. Order (Re: Dismissal Without Prejudice) (Aug. 13, 2024).

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify 1 _CONCLUSION 2 Although this Court finds that the OAG has failed to raise the issue of Judge Tolentino's 3 disqualification timely and therefore has waived any right to advance it now, even if it were raised 4 5 at the earliest practicable time, no disqualifying facts exist to support Judge Tolentino's

6 disqualification in cases involving Attorney General Moylan and/or the Office of the Attorney

7 General. This Court finds that Judge Tolentino is not disqualified under 7 GCA § 6l05(b)(5)(A) 8 or (B) or Canon 3 of the Model Code from presiding over this case on the grounds that he has any 9 familial association with Attorney General Moylan. Notwithstanding Attorney General Moylan's 10

11 biological relationship to Judge Tolentino's stepchildren and former marriage to Mrs. Tolentino,

12 neither Judge Tolentino nor his wife are related within three degrees to Attorney General Moylan

13 either by affinity or consanguinity, regardless of whether Mr. Moylan is a party to the litigation 14 (which he is not) or appearing as a lawyer for a party .

15 For the reasons stated herein, the OAG's Statement of Objection and Motion to Disqualify 16

17 is REJECTED and the Motion is DENIED. This case shall be returned to Judge Tolentino for

18 further disposition. 19 SO ORDERED this 30th day of August, 2024.

20

21

22 I KBLE MARIA T. CENZON

23 Judge, Superior CouN of Guam 24

25

26

27

28

People v. Taimanglo, Criminal Case No. CM0215-24 Decision and Order Denying the OAG's Statement of Objection 7 GCA § 6107 and Motion to Disqualify