_ MS Iv FILED CLERK CLERK GF OF CGURT COUR 1 20211 AUG 202\ AUG 2929PH PH2: 2: l18 a 2 SUPERIOR coup<"rt SUPERIOR COUR 3 OF GUAM GUAM; IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 4
5 OF GUAM, THE PEOPLE OF GUAM, 6 Case No. No. CF0498-24 7 vs.
8 PERSUS TIEDE, DECISION ECISION AND ORDER (Answer to OAG's TAG's Statement Statement of of Objection) (aka Persius PersiusTaiti) Taiti) 9 DOB: DOB:12/15/1977 12/15/1977 akaaka12/07/1989 12/07/1989 10
11 Defendant.
13 INTRODUCTION 14 This matter matter came came before the the Honorable Honorable John John C. Terlaje on on August 15 th 2024, August 15"=, 2024, for aa 15
16 Motion Hearing regardingthe Hearing regarding theOffice Office of of the the Attorney General's ("OAG's") Attorney General's ("OAG's") Statement Statement of
17 Objection Objection ("Objection"), in in which which the the OAG OAG objects objects to to the the Honorable Honorable Alberto E. E. Tolentino Tolentino
18 ("Judge Tolentino") Tolentino") presiding presiding over overthe theabove-captioned above-captioned matter matter due due to to his his relationship relationship with
19 Attorney General Attorney General Douglas DouglasMoylan Moylan ("AG ("AG Moylan" Moylan" or or "then-Attorney "then-Attorney Moylan"). Moylan"). Upon Upon 20 consideration of the consideration of the arguments argumentsand andapplicable applicableGuam Guamlaw, law,the theCourt Courthereby herebyDENIES DENIESOAG's OAG's 211 Objection. section.As Assuch, such,Judge JudgeTolentino Tolentinomay maycontinue continueto to preside preside over this matter. matter. 22 BACKGROUND 23 This case began on July 18, 18, 2024, the Attorney General 2024, when the General of ofGuam Guam accused accused Persus Persus 24 Tiede with with Possession Possession of aa Schedule Schedule II II Controlled Controlled Substance 3rd Degree (As aa 3rd Substance (As Degree Felony). Felony). 25 Magistrate's Magistrate's Con pl. (Jul. Compl. (Jul. 18, 18, 2024). 2024). The Thematter matterwas was assigned assigned to to Judge Judge Tolentino Tolentinoon onJuly 24 th July 24'h, 26
27 Decision Decision and and Order Case No. CF0498-24,People CF0498-24, v. Persis Tiede v. Persus Page 1 of13 13 1 2024. 2024. Notice of of J. J. Assignment Assignment (Jul. (Jul. 24, 24, 2024). 2024). Then, Then, on on July 29th , 2024, July 29th, 2024,the theOAG OAG filed aa 2 Statement of Objection Statement of Objection and and Motion Motion to Disqualify Disqualify Judge Judge Tolentino Tolentino based based on his alleged alleged 3 4 relationship with AG relationship with AG Moylan. Moylan. Statement of Obj. Statement of Obi. 77 GCA GCA §§ 6107 & Mot. 6107 & Disqualify. (Jul. to Disqualify. Mot. to (Jul. 29, 29, 4 5 2024). 2024). Judge Tolentino answered Judge Tolentino the Statement answered the Statementof of Objection Objection on July July 31, 31, 2024. 2024. Answer to 5
6 6 Statement of Obj. (Jul. Statement of (Jul. 31, 2024). 2024). The matter matter was then assigned to this assigned to this Court Court in the the limited
7 capacity ofRecusal Judge August 1, Judge on August 1,2024. 2024.Notice Noticeof of Assignment Assignment ofRecusal Recusal J. J.(Aug. (Aug. 1, 2024).
8 The OAG OAG responded responded to to Judge Judge Tolentino's answer answer on August August 8, 8, 2024. 2024. People's Resp. Resp. to J. J.
9 9 T01entino'sAnswer Tolentino's AnswertotoStatement StatementofofObj. Obi.77GCA GCA §§ 6107 6107&& Mot. Mot. to to Disqualify Disqualify (Aug. (Aug. 8, 8, 2024). 2024). 10 10 . , . . . . Court then took the matter of The Court of Judge Judge Tolentino's disqualification under Tolentlno s disqualification under advisement. 11 11 A. Attorney AttorneyGeneral GeneralMoylan's Moylan'sRelationship Relationshipwith with Judge Judge Tolentino Tolentino 12 12 It is is undisputed thatJudge undisputed that JudgeTolentino Tolentinoisismarried marriedtotoAG AGMoylan's Moylan's ex-wife, ex-wife, Doris Doris L.G. 13 13 Tolentino ("Doris"), ("Doris"),and and that that Judge Judge Tolentino is the stepfather stepfather totoAG AG Moylan's Moylan's two two children, children, 14 14 15 Brandon (born (born 1990) andAngela 1990) and Angela (born (bam 1992). 1992). Answer to Statement Answer to Statement of ofObi. Obj. at at 33 (Jul. (Jul. 31, 31, 2024). ). 15 16 AG Moy1an AG Moylan and Doris divorced divorced in in 1997, 1997, and then, in 2005, and then, 2005, Doris Doris remarried remarried to to Judge JudgeTolentino, Tolentino, 16 17 17 who remains her husband remains her husbandtotothis thisday. day.Id.IdAs As recently recently as as October October2022, 2022,prior priortotoAG AG Moylan's Moylan's
18 18 election, Judge Tolentino disqualified Judge Tolentino disqualified himself himself from from cases cases involving involving then-Attorney then-Attomey Moylan in
19 19 private practice, because because"Douglas "Douglas Moylan, Esq., is the the father father of of my my step-children." step-children." Id. at at 24-26,
20 20 Exs. A-C. Exs. A-C. 21 A month later, on November 8, 2022, 2022, then-Attomey then-Attorney Moylan was elected Attorney 22 General of of Guam and became Guam and becameAG AG Moylan, taking office officein inJanuary 2023.Id. January 2023. Id at 2. Before Before being 23 sworn in as as Attorney Attorney General, however, then-Attomey then-Attorney Moylan Moylanrequested requested aa meeting meeting with with Judge Judge 24 Tolentino in in December December 2022. 2022. Id. The meeting Id The meeting took tookplace place in in Judge Judge Tolentino's Tolentino's chambers chambers with 25 26 the Administrator Administrator of Courts, Courts, Judge Tolentino's chamber Judge Tolentino's staff, and chamber staff, then-Attomey Moylan's and then-Attorney 26
27 Decision and Decision and Order No. CF0498-24, People v. Case No. v. Persus Persis Tiede Tilde Page Page 2 of13 11 transition chairperson,Mr. transition chairperson, Mr.Wilfred Wilfred Aflague. Aflague. Id. According AccordingtotoJudge JudgeTolentino, Tolentino,and andundisputed undisputed 2 by the the OAG, OAG, then-Attomey then-Attorney Moylan Moylan"assured "assured [Judge [Judge Tolentino] Tolentino] and and the the other other members members in 3 attendance that attendance thathe heperceived perceived no no conflict election as Attorney General conflict in his election General and and the the prosecution 4 of of criminal casesbefore criminal cases before [Judge [JudgeTolentino's Tolentino'sCourt]." Coult]."Id. Id Accordingly, since since AG Moylan Moylan took 5
6 office officein inJanuary January 2023, Judge JudgeTolentino Tolentino has presided over has presided over a myriad myriad of of criminal cases all without
1 7 statements ofobjection statements of fromthe objectionfrom theOAG OAG', until now. Only recently until now. has the recently has the OAG OAG begun begun to to file
8 statements objections2 and of objection statements of and only only recently has JudgeTolentino has Judge Tolentino been disqualified because because of his 9 relationship with relationship withAG AG Moylan. 10 Recent Decisions B. Recent Decisions Regarding Regarding Judge Judge Tolentino's Tolentino's Disqualification Disqualification 11 11 The first ever ever disqualification disqualification of ofJudge Judge Tolentino Tolentino(based (based on on his his relationship with 12 12 AG Moylan) did AG Moylan) not arise did not arise out out of ofan an objection objection from from the the OAG, OAG, but but out out of ofan an objection objection 13 13 from a Defendant. April 5, Defendant. On April 5, 2024, 2024, for for the the first first time, time, aa court court found found that that "a "a reasonable reasonable 14 14 person could question whether whether Judge Judge Tolentino Tolentino could be impartial in a case proceeding 15 15 at the the direction direction of of [AG] [AG] Moylan" Moylan"due duetotothe thefact factthat that Judge Judge Tolentino is stepfather to to AG AG 16 16
17 17 Moylan's Moylan's children. children. People of of Guam Guam v.v. Nakita Nikita T Aguon, Aguon, CM0145-21 CM0145-21 at 8 (Super. (Super. Ct.
18 18 Guam. April 5, Guam. April 5, 2024). 2024). The The Honorable Honorable Joseph Joseph N. Camacho, Camacho, sewing serving as as Judge Judge Pro Pro
19 19 Tempore, issued issued the the Decision Decision and and Order Order after afterNakita Aguon, the Nikita T. Aguon, the Defendant Defendant in in the the 20 case, case, argued during during a hearing hearing on March 1, 1, 2024, 2024, that that "there "there had had been been an an undisclosed undisclosed 21 familial relationship between between Judge JudgeTolentino Tolentinoand andDouglas DouglasMoylan Moylan..."Id ... " . at at 4-5.. 22
24 11 See SeeAnswer Answer to to Statement Statement ofof Obj. at 6 (Jul. 31, 2024) (Jul. 31, 2024) citing citing People v. v, Balatico, Crim. Case No. CM0188-24; Case No. CM0188-24; People 25 v. Rosal, Rosol, Crim. Case Case No. CF0270-24, and People v. v. Rik at, Crim. Case No. Rikat, No. CF0423-24 CF0423-24 andand Shane Shane Tenorio Tenorio Healy, "Akoma "Akoma trial: trial: Judge denies admission of AG AG evidence", evidence", Marianas Variety, November November 23, 2023, Akoma trial: trial: Judge denies admission admission of of AG evidence Il News AG evidence News I Marianas Variety News & Views Views (mvariety.com). (mvarietv.com). 26 z2 See see People People ofof Guam Guam v.v. Richard y. Y. Yabnez, Yabnez, et.et. al, al, CF0447-23 at 5-6 (Super. ct. Ct. Guam. June 12, 2024). 27 Deci si on and Order Decision Case No.No. CF0498-24, CF0498-24, Peopl e v. v. Persus Persi s Tiede Ti l de Page 3 of of 13 1 1, 2024, for Then, on May 1, for the the first first time time during during AG AG Moylan's Moylan's tenure as Attorney
22 General, Gener a l, the t he OAG filed filed aa SStatement of Object t a t ement of Objection aagainst ga t Judge udge Tolentino olent ino in in aa 3 government corruption case, based government con'uption based on on Judge Judge Tolentino's Tolentino's relationship with with AG AG Moylan's Moylan's 4 children. See People of ofGuam v. v. Richard Ybanez, et. Richard Y Ybanez, et. al, CF0447-23 CF0447-23 at at 5-6 (Super. Ct. 5 Guam. June 12, Guam. 12, 2024). 2024). The objection objection took place place several several days days after after Judge Tolentino Tolentino 6 7 disqualified the disqualified the OAG itself over OAG itself over aa conflict ofinterest conflict of interest in in the the same case. Id at same case. at 55.. The 7
8 earlier. Id Statement of Objection cited the precedent set by Aguon a few weeks earlier. at 6. Id at
99 Ultimately, the Honorable Maria T. T. Cenzon Cenzon denied the Statement of Objection on June
10 12, 2024, holding 12, 2024, holding that that Judge Judge Tolentino Tolentino was was not not disqualified disqualified under under 77 GCA GCA §§ 6105(a) 6l05(a) or or
11 (b), and that (b), and that even even if if he he was, the OAG's was, the OAG's Objection Objection was was untimely untimely under under 77 GCA GCA §§ 6107 6107 12 12 4 . and constituted walver. Id constituted aawaiver. at 23. Id at 13 13 Concurrently, on Concurrently, on May 2024, a Defendant in another May 21, 2024, another case, case, similar to the 14 14 Defendant in Aguon, Aguon, filed filed an Amended Objection Objection on on Judge Judge Tolentino Tolentino as as well. See well. See 15 15 16 People of Guam People of Guam v.v. Corina Corina Jamel Jamel Taitingfong, Taitingfong,etetal. al.("Taitingfong"), ("Taitingfong"), CF0024-24 at 4 16 17 (Super. Ct. Guam. June 4, 2024). The Honorable Elyze (Super. Ct. Elyze M. M. Iriarte, Iriarte, sitting sitting as aa recusal 17
18 18 Judge, issued Judge, issued a Decision and Order finding finding for the the Defendant Defendant that "[b ]ecause of a that "[b]ecause
19 19 reasonable perception that reasonable perception that Judge Judge Tolentino Tolentino continues continues a co-parental co-parental connection with
20 20 Attorney Attor ney General Gener a l Moylan Moyla n despite despite the a tion of the ma turation of their mutuall childr children, en, he is he is 21 disqualified, and disqualified, and such such disqualification disqualificationhas hasnot notbeen beenwaived waived nor nor can can it be be cured cured 22 retroactively through an ethical wall." wall." Id. Id at at 8. 23 Finally, on Finally, on July 18, 2024, July 18, 2024, (a (a week before the OAG OAG filed filed their their Statement Statement of of 24 3 Objection in this cases) the Guam ) the Guam Supreme Court issued an Opinion in San Agustin v. 25
26 33 Statement Statement of of Obj. Obj. 77 GCA GCA §§6107 6107 && Mot. Mot. to to Disqualify. Disqualify. (Jul. 29, 2024). (Jul. 29, 2024). 27 Decision Decision andand Order Case No. No. CF0498-24, CF0498-24, Peopl e v. v. Persus Persi s Tiede Ti l de Page Page 4 of of 13 1 Superior Court, finding that Judge Tolentino that since Judge Tolentino had had previously previously disqualified disqualified himself
2 2 from from the case, based on his his close close relationship with with the Defendants, that the theCourt Court"lacked "lacked 3 jurisdiction to act while the judge is jurisdiction San Augustin, 2024 Guam 2 at is disqualified." San ,r 19. at 1] 19. 4 The Guam Supreme Supreme Court explained explained that that they they were using their supervisory authority "to were using 5 clarify clarifythat that aa disqualified disqualifiedjudge judgeshould should not not be be appointed appointed as as a recusal recusal judge." ,r 36. Id atat1] judge." Id 6 7 In In the wake of ofthese these recent recent decisions, decisions, this this Court Court now nowtakes takes up up the same issue of whether 7 8 Judge Tolentino Judge Tolentino should should be be disqualified disqualified based basedhis hisrelationship relationshipwith withAG AG Moylan. Moylan. 8
9 DISCUSSION 10 7 GCA §§6105 7 GCA 6105 provides providesthe the substantive substantive grounds for disqualification grounds for disqualification of ofaaJudge Judge in in Guam. Guam. 11 11 7 7 GCA GCA §§6105(a) 6105(a) states in full: states in full: 12 12
Any Judge shall disqualify Judge shall disqualify himself himself or or herself herselfin in any any proceeding in in which which his or 13 13 her impartiality might reasonably impartiality might reasonably bebe questioned, questioned,but butif,if, following following complete complete 14 14 disclosure to all parties in the the proceeding proceeding of the reasons reasonsfor for disqualification, disqualification, all parties agree to having the the Judge continue continue to to sit in in the proceedings, he or or she she 15 15 need not not disqualify disqualify himself or herself.
16 16 See See 77 GCA GCA §§ 6105(a). 6105(a). 17 17 The Supreme Supreme Court of Guam, Guam, in in interpreting interpreting this section, section, explained that that "what matters matters is is 'the
18 18 appearance of ofbias,' bias,' not not 'actual an bias."' Dizon v, 'actual bias. v. Superior Superior Court, 1998 1998 Guam ,r 10 (emphasis Guam 33 1] 19 9 . . - 1 "[N]oactual added). "[N]0 actualshowing showingofofblas biasisisnecessary necessaryfor forrecusal ,r lie."IdId11 10. recusaltotolie." 10. Instead, Instead, the Court Court 20 must focus on "whether a reasonable person would must focus would have a reasonable basis for questioning the reasonable basis 21 Judge's impartiality, not not whether the the Judge Judgeisis impartial." impartial." People People v.v. Tennessean, Tennessean, 2010 Guam 12 22 23 ,r 33 citing 1133 citing United United States States v.v. Cherry, th Cherry, 330 F.3d 658, 665 (4th Cir. 2003). Cir. 23 In In Guam, Guam, a Judge Judgeisismandated mandatedtotodisclose disclose any any facts facts which which disqualify disqualify them them under Section Section 24
25 6105, if such 6105, if such grounds exist. 7 grounds exist. 7 GCA GCA §§6106. 6106. When Whensuch such grounds grounds exist exist and and aa Judge Judgefails fails to to declare declare
27 Decision and Decision and Order Case No. CF0498-24, People v. No. CF0498-24, v. Persus Persis Tiede Tilde Page of13 Page 5 of 1 1 them as them required, any as required, any party party may may file file aa statement statement of of objection objection under under 77 GCA GCA §§6107. The The Supreme Supreme 2 Court of Guam Court of Guam has has described described the procedure prescribed the procedure prescribed by by 77 GCA GCA §§ 6107 6107 as follows: as follows: 3
4 Pursuant to 7 GCA 6107, if a judge judge does not recuse himself, thenthen a party may, 'at the earliest practicable opportunity,' 'file ... a written statement objecting to 5 the ... Judge. Judge.' ' The he written itten statement tement must must 'set[ 'set[ ] forth th the fa fact or or fa cts facts constituting the ground of of the disqualification disqualification ofof such ... Judge,' and must be 6 served served on the Judge. Within Within 'ten (l10) 0) days days after after the service ... or ... filing of of any statement, whichever statement, whicheverisis later in time,' a Judge may file a 'written answer,' which later in which 7 the manner must be 'verified in the manner prescribed prescribed for for the the verification verificationofofpleadings.' pleadings If the Judge opposes hishis own own disqualification, disqualification, then then 'the 'the question question of of the the... Judge's ... Judge's 8 disqualification shall shall be be heard heard and anddetermined determinedby by some some other other Judge.' Judge' 9 See Van Dax See Van Dox v. Superior Superior Cr., Ct.,2008 Guam771]i! 17 2008Guam 17 (internal citations omitted). 10 In the same case, the Guam Supreme Supreme Court Court made made clear clear that that "with "with respect respect to the statutory 11 12 ovis ion requiring provision equ ir ing that t ha t disqualification qu a lif ica t ionbe b e urged r ged aat t he the ' ea'earliest r lies t p rpracticable a ct ica b le 12
13 13 opportunity," the intention 'is clear that failure opportunity,' the failure to to comply with the provision constitutes
14 14 a waiver."' Id. 1] ,i 40 citing Caminetti inettiv.v.Pac. Pay.Mut. Mai.Ins. Ins.CO CO.ofoffal., Cal., 139 P.2d 930, 930,933
15 15 (Cal. (Cal. 1943). Therefore, the 1943). Therefore, the Court Court must must first first determine determine whether whether the the OAG waived their
16 16 objection under 77 GCA objection under GCA §§ 6107, 6107, and and then then determine determine whether whether there there is is an an appearance appearance of of 17 1 . 7 blas under 77 GCA bias under GCA § 6105. 6105. 18 18 Did the A. Did the OAG OAG Fail Fail toto File File atatthe the'Earliest 'Earliest Practicable Practicable Opportunity,' Opportunity,' and 19 19 Statement of Therefore Waive Their Statement of Objection Under Under 7 GCA 6107?
20 The Court answers this question in the affirmative. In Guam, in order to to comply 21 wit with 77 GC GCAA §§6107, 6107, disqua lifica ion must disqualification must be be ur ged aatt t the urged he "ea r liest practicable "earliest 22 opportunity." See Van Dax opportunity." See v. Superior Cr., Dox v. Ct., 2008 Guam ,r Guam 77 'H 17 (emphasis added). added). The The 23 Guam Supreme Supreme Court takes this language from aa California California case case and notes that an 24 "objection "objection was waived waived where where party party failed failed to to request disqualification until three months request disqualification 25 26 after the party after party was aware aware of of the the disqualifying Id. atat1],r 45 citing Caminetti disqualyj/ingfacts..." Id inetti v. 26
27 Decision Decision and and Order Order Case No. CF0498-24, People v. v. Persus Persis Tiede Tilde 13 Page 6 of 13 11 Pac. Mai. Ins. Co. Mut. Ins. Co. of ofCaI., Cal., 139 139 P.2d 930, 933 (Cal.1943) (Ca1.1943) (emphasis (emphasis added). added). The Guam
2 Supreme Court also Supreme Court also notes notes that thataa "statement "statementmay may be be untimely untimely if if a party waits until the 3 eve of oftrial trialtotorequest requestdisqualification disqualification based based on information information made made known known months months 4 earlier." Id. earlier." at ii,r 46 Id at 46 citing People v. v. Pariah, Panah, 107 107 P.3d 790, 790, 824 824 (CaL2005) (Cal.2005) (emphasis (emphasis 5 added). In the added). the case casebefore before us, us, AG AG Moylan Moylan knew about the allegedly about the allegedly disqualifying facts 6 7 almost two decades in advance, decades in advance,because becauseAG AG Moylan's Moylan's ex-wife ex-wifeDorris Dorrisremarried remarried Judge Judge 7 g Tolentino in Tolentino in 2005. 2005. Answer Answer to to Statement Statement of ofObj. Obj. at at 33 (Jul. (Jul. 31, 2024). 8
9 Further, AG Moylan Further, AG Moylan himself himself recognized recognized that that the "earliest possible opportunity" opportunity"
10 to address theallegedly address the allegedly disqualifying disqualifying facts facts was was almost almost two two years years ago, in in December December 2022, 11 11 before taking taking office, because because that's when then-Attorney Moylan chose then-Attorney Moylan to meet with chose to 12 . . . . . Judge Judge Tolentino Tolentlno and waive the conflict. waive the Id.atat2.2.AG conflict. Id AGMoylan Moylan doesnot does not disputeth1s4, dispute this4, and and 13 13 the meeting meeting took place in front of witnesses, including including the the Administrator Administrator of of Courts. Courts. Id. Id 14 14 is correct It is correct that that the the newly elected Attorney General General sought to resolve the sought to the conflict in 15 15 16 December December 2022 before taking office, office,because because there there are are massive massive administrative administrative concerns 16 17 with disqualifying with disqualifying one one of ofthe the Guam Guam Superior Court's limited limited Judges from every Judges from every criminal 17
18 18 case on the the island, island,and andany anycivil civil case case charged chargedby by the theOAG OAG as as well. well. This This is is why why the the Guam
19 19 Supreme Court has has cautioned that that a Judge Nudgeshould shouldnot not"distance "distance themselves themselves from cases cases
20 20 at the slightest suggestion" suggestion" because because "[a] Judge's Judge'sduty dutyto tohear hear aa case case and keep the wheels wheels 21 of of justice rotating rotating is just as strong as as strong as his his or or her her duty dutyto toremove remove himself himself or or herself herself if a 22 reasonable personwould reasonable person wouldnot notbelieve believe in his his or or her her impartiality." impartiality."Ada v. v. Guitierrez, 2000 23 ,r,r 12-13. Guam 22 at 1111 12-13. With With allall ofofthis thisininmind, mind,the theCourt Courtwill will nevertheless address address the 24 OAG's OAG'stimeliness timeliness arguments. arguments. 25
26 44 Min. Min. Entry at at 9:48:01 9:48:01 AM AM (Mot. (Mot. Hearing, Hearing, Aug. 15, 2024). 27 Decision Decision and Order Case No. No. CF0498-24, CF0498-24, Peopl e v.v. Persus Persi s Tiede Ti l de Page 7 of of 13 11 a. AG AGMoylan's Moylan'sWaiver WaiverStill StillApplies, Applies,Even EvenThough Thoughthe the OAG OAGFiled Filed this this Case Case in in 2024 2024 2 The OAG OAG maintains maintains that they they filed their their Magistrate Magistrate Complaint for this this case case in 3 July 2024, July 2024, and andthat thatitit isis therefore therefore timely. timely. People's Resp. Resp. to to J. J. To1entin0's Answer to Tolentino's Answer 4 Statement of Obj. Statement of Obj. 77 GCA GCA §§ 6107 6107 & & Mot. Mot. to Disqualify at to Disqualify at 3, 3, (Aug. (Aug. 8, 8, 2024). 2024). In In aa more more 5
6 typical situation, the Guam Supreme situation, the Supreme Court Court has hasheld held that that"a "a statement statementof of objection is 6
77 normally timely ififititisissubmitted normally submitted prior prior to to any any hearing before the the challenged judge in in the
8 matter." matter." See Van Dox v. See Van v. Superior Superior Cr., Ct., 2008 2008 Guam Guam 77 1] ~ 46 citing citing Hollingsworth, Hollingsworth, 236 236
9 9 CaLRptr. Cal.Rptr. at 195-96 (emphasisadded). 195-96 (emphasis added).However, However, this is is not not aa"normal" "normal" situation. situation. This is 10 the Attorney the General of Guam. Attorney General Guam. If If we wedisqualify disqualify Judge Judge Tolentino Tolentino from from hearing hearing cases cases 11 11 related to AG Moylan, related to Moylan, we we will willdisqualify disqualify Judge Judge Tolentino Tolentino from from Guam's Guam's entire 12 12 prosecution prosecution mechanism. mechanism. 13 13 When the Guam Supreme Court laid laid out out the the normal normal timeliness timeliness standard, standard, stated stated 14 14
15 above, the Court citedHollingsworth, llingsworth,but that thatCalifornia California case case involves involves aa situation where 15
16 16 a Defendant could not possibly possibly predict predict that that the the Judge Judge in question question would would hear hear the case
17 17 ahead of time. ahead of time. See Hollingsworth, Hollingsworth, 236 CaLRptr. Cal.Rptr. at 197 ("We find 197 ("We findititunreasonable, unreasonable, as as
18 18 well as well as impracticable, to require presentation of a statement of disqualification until it is statement of 1 19 n . . . , 9 known whlch known which judge wlll will hear hear the the case."). Unllke Unlike the the Defendant Hollingsworth, AG Defendant in Hollingsworth, AG 20 Moylan knew Moylan knew that that Judge Judge Tolentino Tolentino would hear hear AG AG Moylan's Moylan'scases, cases, because because Judge Judge 21 Tolentino is is aa Guam Court Judge Guam Superior Court Judgeand andAG AGMoylan Moylan is is the the Attorney Attorney General General of of 22 Guam. Guam. 23
24 AG Moylan AG Moylanknew knew well wellahead ahead of oftime time that that Judge Tolentino would be hearing Judge Tolentino hearingAG AG
25 25 Moylan's Moylan's cases, cases, which is why AG AG Moylan Moylan himself himselfasked asked Judge Tolentino for for aa meeting
26 to address the countless, address the countless,potential potentialconflicts. conflicts. Answer Answer to Statement of Obi. Statement of Obj. at at 2 (Jul. (Jul. 31,
27 Decision Decision and and Order People v. Case No. CF0498-24, People v. Persus Tiede Persis Tiede Page Page 8 of 13 13 1 2024). Typically, Typically, the the timeliness timeliness requirement should be "liberally construed" to promote
2 2 justice. See Van Dax See Van Dex v. v. Superior Ct., 2008 Guam 7 ,r 45 7 1i 45 citing citing Eagle Eagle Mains. Maint. & Supple Supple 3 Co. Co. v. Super. Super. Ct., Cf., 16 Cal.Rptr. 745, 745, 747 747 (Dist.Ct.App.1961). (Dist.Ct.App.1961). However, However, again, again, when when the 4 Supreme Court emphasizes Guam Supreme emphasizes this this liberal liberal construction, construction, they they cite cite aa California case 5 where, "it "it would wouldplace placean anundue undue hardship hardship upon upon aa litigant litigant or or his his counsel counsel to compel him 6 to know before the first scheduled scheduled trial trial setting, what judge would would be assigned to try his 7
8 particular department case in a particular department of of the the court court where where the the trial trial date date has hasbeen beenset setover." over." Id. Id
9 emphasis added). (emphasis
10 The Guam Supreme The Guam Supreme Court's Court's normal normal standard clearly applies standard clearly applies in in aa typical typical 11 11 situation, but situation, butthe thecase casebefore beforeus usisisnot nottypical: typical: itit involves involves the the Attorney Attorney General. General. AG AG
12 clearly knew Moylan clearly knew "what judge would would be be assigned assigned to to try try his his cases," cases," because because the 13 13 General represents Attorney General represents the the People, People, and and the the People People inevitably inevitably try try cases cases in in front front of of 14 14 every Superior Court Court Judge, Judge, including including Judge Judge Tolentino. Tolentino. This This isis why why AG AG Moylan met 15 15 with Judge Judge Tolentino Tolentino back in December 2022 2022 to to specifically address Judge Tolentino's address Judge Tolentino's 16 16
17 criminal docket, criminal docket, before before taking taking office. office. Further, Further, AG AG Moylan Moylan does does not dispute dispute that he
18 18 purposely waived any potential conflicts during the meeting. Min. Entry at 9:48:01 9:48:01 AM
19 19 (Mot. Hearing, Aug. 15, 15, 2024). This waiver stood for over a year and half. 5 The and aa ha1f.5 The AG
20 cannot rescind cannot rescind the the waiver now. now. Countless Countless criminal cases could could be overturned, an 21 outcome that would not "promote justice." Van Van Dox Dax v, 77 v. Superior Superior Cr. if Guam 771145 Ct., 2008 Guam 22
25 SeeAnswer s5 See AnswertotoStatement Statementof ofObj. obi. at at 6 6 (Jul. 31, 2024) citingPeople v. 2024) citing Balatico,Crim. Case v. Balatico, Case No. No. CM0188-24;People CM0188-24; v. Rosal, Rosal,Crim. Case No. CF0270-24, CF0270-24, andPeople v. Rik at,Crim. People v. Rikat, Case No. CF0423-24 and Shane Tenorio Healy, No. CF0423-24 and Shane Tenorio Healy, "Akoma trial: Judge denies denies admission of of AG evidence", evidence", Marianas Marianas Variety, Variety, November November23, 23, 2023,Akoma trial: Judge 2023, Akoma trial: Judge 26 denies admission ofof AG evidence News II Marianas evidence I News Marianas Varietv Variety News News &&Views Views (mvarietv.com) (mvariety.com). 27 Decision Decision and and Order Case No.No. CF0498-24, People v. v. Persus Persis Tiede Tilde Page Page 9 of13 11 citing Eagle Eagle Mains. Maint. & Supple Supple Co. v. Super. Super. Cr., Ct., 16 16 Ca1.Rptr. Cal.Rptr. 745, 745, 747 747 2 2 (Dist.Ct.App.1961). (Dist.Ct.App.1961 ). 3 b. San San Augustin Augustin Does Not Justify Does Not Justify OAG's OAG's Statement Statement of Objection 4 The OAG OAG claims claims that that the San San Augustin Augustin opinion opinion provides provides additional additional grounds grounds on 5 which to require disqualification, "namely "namely the the Supreme Supreme Court's Court's explanation explanation and use use of of 6 7 its supervisory supervisory authority authority over the Superior Court of Guam's Guam's assignment assignment of matters matters to 7 8 disqualified disqualified judges." People's People's Resp. Resp. to to J. Tolentino's Answer J. Tolentino's Answer to Statement of of Obj. 7 GCA GCA 8
9 §§ 6107 & Mot. 6107 & to Disqualify Mot. to Disqualify at at 3 3 (Aug. (Aug. 8, 8, 2024). 2024). The The OAG OAGalso also notes notes that they filed that they filed
10 their Statement of of Objection Objection the day afterthe Guam Supreme Court issuedSan San Augustin.
11 11 Id. However, However, the the Guam Guam Supreme Supreme Court's Court's supervisory supervisory authority authority was was not invented invented in in July 12 . . . 2024; itit has been 2024, been in use use for for decades. See Peopl e v. decades. See v. Angoco, ,r 18 1129 Angoco, 2006 Guam 18 29 (holding (holding 13 that the Guam that the Supreme Court's Guam Supreme Court's supervisory supervisory power is intended intended to "address "address extreme extreme 14 14 cases, suchas cases, such aswhen whenthe theSuperior SuperiorCourt Courtisisacting actingin inexcess excessof of its its powers."). p0wers."). Further, Further, in 15 15 16 San San Augustin, the Guam Supreme Supreme Court Court addressed addressed"( "(1) the manner in which judges are 16 17 appointed to review appointed to review the denial denial of of disqualification disqualification requests, and(2) requests, and (2) the the rights rights of the the 17
18 18 parties to briefing parties to briefing and and hearing hearingonce oncethe thereview reviewisisassigned assignedtotoaareviewing reviewingjudge judge..."San ... " San
19 Augustin,2024 Guam 2 ,r 'H34. 34.This Thisinvolves involves judges reviewing disqualification disqualyication requests, requests,
20 20 not not the the disqualification itself. As disqualification itself. As such, such, San San Augustin Augustin does does not not apply apply to the the 21 disqualification disqualification issue before us. us. 22 c. Aguon Aguon is Not Binding Precedent, But Even Precedent, But Even If If It Was, Was, It It Establishes Establishes 23 Precedent for for a Defendant, Defendant, Not Not the theOAG OAG
24 Although San Augustin is is not not relevant relevant to to the the case, case, the same same cannot be said for
25 25 Aguon, the the first instance where a trial court instance where court disqualified Judge Judge Tolentino because because "a
26 reasonable person reasonable person could could question whether whether Judge JudgeTolentino Tolentino could be impartial in in a case 27 Decision and Decision and Order Case No. CF0498-24, People v. CF0498-24, People Persis Tilde v. Persus Tiede 10 of13 Page 10 1 proceeding proceeding atatthe thedirection directionofof[AG] [AG] Moylan." Moylan." People People of Guam Guam v.v. Nakita Nikita T Aguon, Aguon, 2 2 CM0145-21 at 8 (Super. CM0145-21 at Ct. Guam. (Super. Ct. April 5, Guam. April 5, 2024). 2024). This This decision decision is is not not binding, binding, 3 3 u . n I . however, however, as as ititwas wasnot notIssued issuedby bythe theGuam GuamSupreme SupremeCourt. Court.Further, Further,the theob] echelon in objection in the 4 case arose because case arose becausethe theDefendant Defendantfiled filedaaMotion Motionfor for Disqualification Disqualification of Prosecutor (not 5
6 6 a Statement or Statement of/ Objection under under 77 GCA §§6105) 6105)and andthen thenthe the Defendant Defendant later later argued argued
7 during during a hearing hearing on March l,1, 2024, 2024, that that "there "there had had been been an an undisclosed undisclosed familial familial 7 8 relationship betweenJudge relationship between JudgeTolentino Tolentinoand andDouglas DouglasMoylan Moylan..." ... " Id. at at 4-5. Therefore, the 8
9 holding inAguon does not apply apply to to objections objections by by the theOAG, OAG, but instead instead to to objections by
10 a Defendant. Even if Aguon Defendant. Even Aguon was binding precedent, precedent, AG Moylan cannot cannot make make the
11 11 preposterous claim that preposterous claim that there there has hasbeen beenan an"undisclosed "undisclosedfamilial familial relationship" relationship" between 12 ¢ . . . . Judge Judge Tolentino Tolentlno and and himself. himself. AG Moylanhas AG Moylan has known knownabout about thls this relationship relationship for for twenty 13 13 years and, unlike years and, unlike the the DefendaNt Defendant in Aguon, AG AG Moylan Moylanwaived waivedthe therelationship relationship in 14 14 December 2022. December 15 15 d. AG AGMoylan's Moylan'sWaiver WaiverisisofofParticular ParticularConcern, Concern, Given that that the the OAG OAG 16 May Maybe be Attempting Attempting to to Manipulate Manipulatethe the Criminal CriminalJustice Justice System System 17 Finally, the fact that that AG Moylan Moylan waived waived the the conflict conflictand and then then seems seems to have 18 18 rescinded that waiver waiver is is of ofparticular particularconcern, concern,because becausethe the Guam Guam Supreme Supreme Court Court makes makes 19 19 it clear it that 77 GCA clear that GCA §§ 6105 "is not 6105 "is not intended to 'bestow intended to 'bestow veto power over veto power to be or to judges or over judges be 20 used as asaajudge judgeshopping shoppingdevice."' device."San San Agustin v. v. Superior Court Court of ofGuam, Guam, 2024 2024 Guam 21 ,r 24 2 1] 24 (quoting (quoting People v. v. Camaddu, Camaddu, 2015 ,r 80 2015 Guam 2 1] 80 (quoting (quoting Nichole Nichols v. v. Alley, Alley, 71 71 22 F.3d 347, 351 th 351 (10th Cir. 1995) Cir. 1995) (per curium), curiam); cf cf Ada, 22 ,r'H21 Ada, 2000 Guam 22 21("We ("We do not 23
Pandora's box in which parties begin drawing a judge's want to open a Pandora's judge's family tree tree each each 24
25 time it it seems seems that that aajudge judge will them."). AG will rule against them."). AG Moylan Moylandid didnot not question question his own
27 Decision Decision and and Order Case No. CF0498-24, People v. CF0498-24, People Persis Tiede v. Persus Tiede Page l11 l of 13 13 1 waiver with with Judge Judge Tolentino, until a year-and-a-half into AG year-and-a-half into AG Moylan's Moylan's tenure, tenure, when
2 JudgeTolentino Judge Tolentino issued issued aamajor majordecision decisionwith withwhich whichAG AG Moylan Moylan seriously disagreed. disagreed. 3 In In that case, case, in in the the first decision to ever ever address Statementof address a Statement of Objection by the 4 OAG OAG regarding regarding AG AGMoylan's Moylan'srelationship relationshipwith withJudge Judge Tolentino, Tolentino, the the Honorable Honorable Maria 5 T. Cenzon Cenzon notes that thatthe thetiming timing of of the the OAG's OAG's Objection Objectionisis"suspect "suspect because because it comes on 6 the heels of Judge the Tolentino's Decision Judge Tolentino's Decisionand and Order Order issued issued on April April 25, 25, 2024, 2024, granting granting 7
8 Defendant Sablan'sMotion Defendant Sablan's Motion to to Disqualify Disqualify the the Office of of the the Attorney Attorney General General and and
9 mandating that aa special mandating that special prosecutor prosecutor be be appointed." appointed." People of of Guam Guam v. v. Richard Richard Y Y
10 Yabnez, et. al, Yabnez, et. al, CF0447-23 at 21 (Super. Ct. Guam. Guam. June 12, 2024). June 12, 2024). Since then, and and only only
11 11 a few weeks weeks after filing filing the the Statement Statement of Objection Objection in in this this case, case, AG Moylan Moylan published published I 12 an an op-ed op-ed in Pacific Pacific Daily Daily News, News, confirming confirming that he seeks that he seeks to overturn overturn his his own own 13 13 disqualification by by Judge Judge Tolentino Tolentino in the the very case noted by by the the Honorable Honorable Maria Maria T. T. 14 Cenzon: Cenzon: 15 15 We We are concerned concerned that thethe Guam Guam trial trial courts courts are engaging in Judicial Activism Activism 16 and re-writing Guam Guam law law that that expressly expressly requires that the requires that the Guam Guam Attorney 17 General prosecutor and General be the public prosecutor andto toprovide provide legal legal services to government officials officials who who are are only onlystewards stewards ofofthe the People, People, and and are are not the the People People of Guam, Guam, 18 18 by using "ethics rules" using "ethics rules" to disqualify this this elected elected AG. AG.
19 19 I believe believe it is is wrong wrong and and we will will seek have itit corrected either seek to have either in this court or higher 6 higher courts. courts.6 20 The Court cannot cannot discern discernif if AG Moylan Moylan started started disqualifying disqualifying Judge Tolentino, because, Judge Tolentino, because, 21 as AG AG Moylan Moylanwrites, writes,he heisis"concerned "concernedthat thathe theGuam Guamtn'al trialcou1"cs courts are engaging in in Judicial Judicial 22
23 Activism" Activism"and and he he wishes wishes to to find findaabetter betteroutcome outcomewith withdifferent differentJudge. Judge. These Thesecircumstances circumstances
24 surrounding AG Moylan's surrounding AG Moylan's sudden sudden objection objection against against Judge Tolentino, after a year-and-a-half Judge Tolentino, year-and-a-half of of
25 6 Attorney 6 Douglas Moylan, Attorney General Douglas Moylan, "LETTER: "LETTER:Court Courtdecision decisioninterferes interfereswith with elected elected AG's AG's ability ability to to fight fight corruption", corruption", Pacwc News, June 2, 2024, Pacific Daily News, 2024, LETrER: Courtdecision LETTER: Court decisioninterferes interferes with with elected elected AG's AG's ability ability to to fight fight 26 corruption II Opinion Opinion II guampdn.com. guampdn.com. Decision Decision and and Order 27 Case No. CF0498-24, CF0498-24, People v. v. Persus Persis Tiede Tilde Page 12 of 13 13 11 not objecting, inform inform our our decision decision about about the waiver, because because the the Court should seek to should seek to avoid 2 "outcomes "outcomes which lead to to the the manipulation manipulation of the the criminal criminal justice justice system." system." See See People People v. v. 3 4 Camaddu, ,r 80 Camaddu, 2015 Guam 22 1] 80 (stating (statingthat thatififaatrial trialcourt courtrecused reuseditself itself "every "every time it receives 4 5 unsolicited material uncomplimentary unsolicited uncomplimentary to to a defendant defendantprior priorto totrial trialor orsentencing sentencing[it] [it] would create 5
6 6 an intolerable situation which could lead to to a manipulation manipulationof ofthe thecriminal criminaljustice justicesystem."). system."). For
7 7 this reason, andall reason, and allof of the the reasons reasonsabove, above,the theOAG's OAG's waiver waiver should asaafailure should be treated as failureto to file tile
8 at the "earliest at the "earliest practicable opportunity" under practicable opportunity" under 77 GCA GCA §§ 6107. 6107.
9 B. Does Does Judge Judge Tolentino Tolentino Have Have aaDisqualifying Disqualifying Relationship Relationship that that Creates Creates the 'Appearance 'Appearance of of Bias' Under Under 77 GCA GCA6105? 6105? 10 10 The Court declines to answer this this question questiondefinitively. definitively. Given Given the the waiver waiver under under 11 12 12 7 GCA 7 6107, itit isis not GCA §§6107, not necessary necessary for for the the Court Court to to reach reach the the alleged alleged bias bias under under 77 GCA GCA
13 13 6105, because the 6105, because the objection objection is is procedurally defective. However, procedurally defective. However, given the the recent recent
14 14 revelations in Aguon, Defendants are are not not precluded precluded from from raising raising their their objections. objections. Only
15 15 the OAG OAG is is precluded. precluded. 16 16 CONCLUSION CONCLUSION AND AND ORDER 17 17
18 18 For the the above above reasons, reasons, the the Court Court DENIES the the OAG's OAG's Statement Statement of of Objection Objection and and
19 19 declines to disqualify the Honorable Honorable Alberto E. E. Tolentino. Tolentino. The TheCourt Courtreturns returns this this case to the the
20 Honorable Alberto E. Honorable Alberto E. Tolentino.
22 SO ORDERED, this ORDERED, this YH l~ day of A~~ '2...-qas /J v§uvl 2024.
23 <7 24 SERVICE SERVICE VIA VIA E-MAIL E-MAIL 25 I acknowledge that that an HONOR HONO LE JO c. C. TERLAJE original origi!lal was was emailed to: to: Judge, Sfmerior Co of Guam 06, l)G,FDIC Pvl'C 26 Daw4_mrrim Date~im~ ~ 27 ,4, We /I, c,.,Je, Deput Depufy Germ, uperi rCourtofofGuam Qerk, Sui:erior Guam Decision Decision and and Order Case No. No. CF0498-24, People v.v. Persus Persis Tiede Tilde Page 1313 of of 13