_ 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.
12
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
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
23
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
26
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
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 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
23
24
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
26
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
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
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.
21
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