RUMC, Inc. v. Chamorro Equities, Inc.

• Court: Superior Court of Guam
• Decided: April 11, 2012
• Docket: CV1935-11
• Status: Unknown

Opinion

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5 IN THE SUPERIOR COURT OF GUAM 6

7 RUMC, INC., nka COMPADRES, INC., and ) CIVIL CASE NO. CV1935-ll TONKO REYES, INC., nka T.R.I., INC., ) 8 ) Plaintiffs, ) DECISION AND ORDER 9 ) 10 v. ) ) 11 CHAMORRO EQUITIES, INC., ROBERT V. ) 12 ULLOA, GERALD D. HARTWICK, ) PRISCILLA J. HARTWICK, KENNETH E. ) 13 THOMPSON, WALTERD. ULLOA, ) VIVIAN U. McCURDY, and LISA A. ) 14 ULLOA, ) 15 ) Defendants. ) 16 ----------------------------) 17

18 INTRODUCTION 19

20 This matter came before the Honorable Arthur R. Barcinas on the 29th day of March,

21 2012, when the Defendants filed and personally served a Statement of Objection and Motion to 22 Request Recusal of the Honorable Arthur R. Barcinas Pursuant to 7 GCA § 6105. Attorney 23 Rawlen Mantanona represents the Defendants, and Attorney Jacques G. Bronze represents the 24 Plaintiffs. The Court now issues the following Decision and Order on the matter presented. 25

26 PROCEDURAL HISTORY

27 This case was initially filed on December 15, 2011, and was assigned to the Honorable 28 Arthur R. Barcinas four days later, on December 19,2011. On March 29,2012, the Defendants Decision and Order Civil Case No. CV1935-11

filed the instant statement of objection, seeking to have the assigned judge disqualify himself

2 from hearing any matters in relation to this case or to preside over the trial of any issue of fact

3 or law in this action. The Defendants' request is based on the Judge's former involvement in an 4 allegedly related case concerning these same parties, Civil Case No. CV1431-11. Specifically, 5 the Defendants argue that Judge Barcinas' former participation in that case regarding two 6 matters filed ex parte, as the assigned ex parte judge, might create an appearance of 7

8 impartiality. The Defendants argue that Judge Barcinas' issuance of one ex parte order, on

9 August 24, 2011, later vacated by the regularly assigned judge, and his refusal to hear and 10 determine another motion filed ex parte in CV1431-11 on October 25,2011, creates a situation 11 wherein a reasonable person might reasonably question the impartiality of the Court in this case. 12

DISCUSSION 13

14 A challenged judge may strike a statement of objection without referring the matter to a

15 recusal judge, "whenever a party fails to comply with the service, verification, or timeliness 16 requirements." Guam v. Johnny, 2006 Guam 10 ~ 10. A challenged judge may also strike a 17 statement of objection without referring the matter to a recusal judge if the statement is 18

19 procedurally or "legally insufficient." Id. However, the challenged judge's review of the

20 sufficiency of the statement is limited to whether the statement is procedurally proper under 7 21 GCA § 6107, and whether it "alleges any of the grounds for disqualification found in Title 7 22 GCA § 6105." Id. at ~ 20. "If ... the petition is legally insufficient or formally defective, the 23 judge can properly strike or disregard the statement of objection without referring it to another 24

25 judge." Van Dox v. Superior Court of Guam, 2008 Guam 7 ~ 25.

27 II 28

Page 2 of 10 Decision and Order Civil Case No. CV1935-11

1) Timeliness

2 The Court finds that the statement of objection filed by the Defendants is untimely under

3 Title 7 GCA §6107. The statute "requires that statements of objection ... be presented at the 4 earliest practicable opportunity." Johnny, 2006 Guam 10 at ~ 11. The failure to comply with 5 this requirement "constitutes sufficient grounds to strike or disregard the statement of 6

objection." Id. 7

8 Judge Barcinas' involvement in CV1431-ll occurred in August and October of 2011,

9 prior to the filing of this case, CVI935-ll, on December 15,2011. The Court finds that the 10 Defendants were and still are a party to Civil Case No. 1431-11. The Defendants and their 11 attorneys were present throughout the duration of that case, and therefore, at all times possessed 12

the knowledge of Judge Barcinas' actions as ex parte judge in CVI431-11, upon which the 13

14 request to disqualify is based. Yet, the Defendants did not file an objection to Judge Barcinas'

15 qualification to act in this case until March 29, 2012. 16 Although they were aware of the judge's involvement in CV1431-11 at the time that 17 CV1935-11 was filed and assigned to Judge Barcinas, the Defendants waited approximately 18

19 three and one half months after the assignment to file the statement of objection. The

20 Defendants present no explanation for this delay, and conspicuously, do not argue that the 21 information upon which their request is based was recently acquired or was not in their 22 possession at the time this case was initially assigned to Judge Barcinas in December of 2011. 23 Accordingly, the Defendants' request was not made at "the earliest practicable opportunity," 24

25 and may be stricken by the Court. Id. at 13.

Page 3 of 10 Decision and Order Civil Case No. CV 1935-11

2) Legal Sufficiency

2 Under Guam law, the factual basis for the disqualification of judges is governed by 7

3 GCA § 6105. This statute details the various recognized grounds for the proper disqualification 4 of judges. Defendants cite only to 7 GCA § 61 05(a) in filing this objection to competency. This 5 subsection provides in pertinent part: "(a) Any Judge shall disqualify himself or herself in any 6 proceedings in which his or her impartiality might reasonably be questioned .... " 7 GCA § 7

8 6105 (2012).

9 Under 7 GCA § 6105, it is the appearance of bias or prejudice which is of concern to the 10 Court, rather than the reality of bias or prejudice. Cezar B. Dizon v. Superior Court of Guam v. II The People of Guam, 1998 Guam 3, ~ 8 (May 13, 1998). The Defendants claim that the former 12

involvement of the Judge, acting in an ex parte capacity in a related matter creates a situation 13

14 where "impropriety" is at issue. Civil Case No. CV1935-11, Statement of Objection Although

15 a judge has a duty to refuse to sit when disqualified, a judge has an equally strong duty to sit 16 when there is no valid reason for recusal. See State of Idaho v. Freeman, 507 F.Supp. 706, 716 17 (Idaho 1981). Thus, if the Defendants' allegation is well grounded in law and fact, the judge 18

19 must disqualify himself and a new judge must preside over the case. See 7 GCA § 6105(a).

20 However, if the accusation is deficient or unfounded, the judge must keep the assignment. 21 In addition, the very judge whose impartiality is being questioned must decide whether 22 the request for recusal is procedurally and legally sufficient. Guam v. Johnny, 2006 Guam 10 ~ 23 20; see also In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994). An objective test governs this 24

25 inquiry. Johnny, 2006 Guam 10 at ~ 20. "Under the reasonable person standard, a Guam court

26 inquires whether a reasonable person would have a reasonable basis for questioning the judge's 27 impartiality, not whether the judge is impartial." Guam v. Tennessen, 2010 Guam 12 ~ 33 28

Page 4 of 10 Decision and Order Civil Case No. CV1935-11

(citing to Sule v. Guam Bd. of Dental Exam'rs, 2008 Guam 20 at ~ 14, citing United States v.

2 Cherry, 330 F.3d 658, 665 (4th Cir.2003)); see also Dizon, 1998 Guam 3 ~ 8. Thus, the court

3 must determine whether a person with knowledge of all the facts "would perceive a significant 4 risk that the judge will resolve the case on a basis other than the merits." Tennessen, 2010 5 Guam 12 ~33 (citing Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178 (9th Cir.2005). 6 7 GCA § 6107 states that a party seeking ajudge's recusal must file a written statement 7

8 "setting forth the fact or facts constituting the ground of disqualification of such Justice or

9 Judge." 7 GCA § 6107 (emphasis added). A request for disqualification, to be procedurally 10 sufficient under this statute, "requires a verified statement showing facts, not conclusions, from II which the claimed disqualification appears to be probable, that is, from which facts the 12 disqualification appears to follow as a conclusion oflaw." Calhoun v. Superior Court, 51 Ca1.2d 13

14 257, 260, 331 P.2d 648 (Cal.l958). "It is only where an appropriate issue of fact is presented

15 by the statement that a judge is prevented from passing on the question of his own 16 disqualification (under section 170)." Agnew v. Contractors Safety Assn., 216 Cal.App.2d 154, 17 159, 30 Cal. Rptr. 690, 693 (Cal.App.1963)(quoting People v. Sweeney, 55 Ca1.2d 27, 35, 9 18

19 Cal.Rptr. 793, 797, 357 P.2d 1049, 1053 (Cal.l 96 1)). "A statement that contains nothing but

20 conclusions sets forth no facts constituting a ground of disqualification [and] may be ignored or 21 stricken from the files by the trial judge." Id. 22 Defendants cite only to 7 GCA §6105(a) in filing this statement of objection. The 23 statute states in full: 24

25 (a) Any Judge shall disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned, but if, following complete 26 disclosure to all parties in the proceeding of the reasons for disqualification, all parties agree to having the Judge continue to sit in the proceedings, he or she need 27 not disqualify himself or herself. 28

Page 5 of 10 Decision and Order Civil Case No. CV1935-11

7 GCA § 6105(a) (2012) (emphasis added).

2 Defendants do not question Judge Barcinas' "impartiality" in this case. Rather, the

3 Defendants cite to the "impartiality" standard, but repeatedly assert the appearance of 4 "impropriety" of Judge Barcinas' participation in this case. RUMC, Inc., et. aI. v. Chamorro 5 Equities, Inc., et. aI., Civil Case No. CVI935-11, Statement of Objection and Motion to 6 Disqualify the Honorable Arthur R. Barcinas Pursuant to 7 GCA § 6105, Memorandum of 7

8 Points and Authorities, p. 4, ~ 2 (filed March 29, 2012). Specifically, the Defendants allege that

9 it will be inappropriate if Judge Barcinas is allowed to determine the merits of this case, because 10 he will be de/acto reviewing the merits of his own decisions in another case, CV1431-11. This II contention is neither legally nor factually supported. 12

"Impartial" is defined in Black's Law Dictionary as "unbiased; disinterested." BLACK'S 13

14 LAW DICTIONARY, impartial (9th ed. 2009). The Defendants fail to assert that Judge Barcinas is

15 biased, prejudiced, or in any manner interested in the outcome of this case. There are no 16 allegations that he has a personal concern with any of the parties, or the subject matter of the 17 case, and there are no allegations that he has specialized knowledge about this case gained 18

19 outside of his judicial function. In short, the Defendants do not allege that Judge Barcinas will

20 be partial or that there are any questions regarding his "impartiality" in deciding this matter.

21 The Defendants make no allegations that Judge Barcinas will determine this case on 22 anything other than the facts of the case. They merely imply that his participation in this case is 23 procedurally improper because he previously issued an order and declined involvement in a 24

25 related case, while serving in his capacity as the assigned ex parte judge. The Defendants solely

26 allege impropriety based upon Judge Barcinas' exercise of the judicial function in another case. 27

Page 6 of 10 Decision and Order Civil Case No. CV1935-ll

Even if the Defendants were actually asserting some bias or interest on the part of Judge

2 Barcinas, "[ d]isqualifying bias must normally stem from extrajudicial sources," and this

3 presumption may only be overcome by a showing by such pervasive and vehement bias that no 4 reasonable person could question the predisposition and personal animosity of the judge 5 towards a party. Van Dox, 2008 Guam 7 ~ 35; see also Tennessen, 2010 Guam 12 at ~ 32. 6 In this case, Defendants complain only that there is an implication of "impropriety" that 7

8 arises out of Judge Barcinas' vacated ex parte order and later refusal to make a determination on

9 an ex parte motion for reconsideration in CV1431-11, instead referring the matter back to the 10 assigned judge. They point to no harsh language or other evidence of strong personal bias on 11 the part of Judge Barcinas. In fact, the Defendants make no allegations of bias at all. As 12

explained by both the United States Supreme Court and the Supreme Court of Guam, judicial 13

14 rulings alone do not constitute a sufficient basis for the recusal of a judge. Liteky v. U.S., 510

15 U.S. 540, 541 (1994); U.S. v. Grinnell Corp., 384 U.S. 563, 583 (1966); Ada, 2000 Guam 22, 16 ~16; and Van Dox, 2008 Guam 7 ~ 35. Furthermore, Defendants have failed to point to any 17 statements (in-court or out-of-court) by Judge Barcinas which would support any assertion of 18

19 bias. Absent an extra-judicial showing of bias the Defendants have failed to legally allege that

20 Judge Barcinas should be disqualified on the basis of "impartiality" under 7 GCA § 61 05(a). 21 Next, even if procedural "impropriety" were the standard by which to determine 22 disqualification under 7 GCA § 6105(a), the allegations of "impropriety" in this case are 23 factually deficient. 24

25 Defendants assert that the outcome of this case relies upon the interpretation of the

26 decisions in CV1431-11, and on this basis insinuate that Judge Barcinas might have some sort 27 of interest in upholding his own judicial acts performed as part of his ex parte duties in 28

Page 7 of 10 Decision and Order Civil Case No. CY1935-11

CV 1431-11, and therefore, detennination of this case would put him in the position of an

2 appellate court.

3 This argument is thoroughly attenuated, and factually unsupported. Judge Barcinas' 4 first ex parte act was to issue an order, on the basis that there appeared to be an ex parte basis 5 for its issuance. This order was vacated by the assigned judge. There is no longer any order 6 issued by Judge Barcinas to uphold in CV1431-11 or CV1935-11. Judge Barcinas' next ex 7

8 parte act was to decline to hear a motion for reconsideration, on the basis that the matter did not

9 appear to require an ex parte hearing, and should be heard and detennined as a regularly 10 scheduled motion before the regularly assigned judge. Judge Barcinas issued no orders or 11 decisions regarding this motion. Consequently, there are no legal, factual, or other decisions or 12

13 detenninations made by Judge Barcinas in CV1431-11 to be reviewed.

14 Accordingly, Defendants' allegations underlying the statement of objection are not

15 based upon factual or legal assertions, but rather, mere bluff and speculation. There are no 16 allegations of "bias," "prejudice," or other interest involved in this case, as required under 7 17 GCA § 6105(a). 18

19 Finally, as a policy matter, the Supreme Court of Guam has held, "[t]he recusal statutes

20 should not be so broadly construed so as to become presumptive or to allow for judge 21 shopping." Dizon, 1998 Guam 3, ~9. Following the standards set forth by the United States 22 Supreme Court and earlier precedent of the Supreme Court of Guam, the court in Ada v. 23 Gutierrez, 2000 Guam 22 held that, "just as judges may disqualify themselves too readily, 24

25 parties may try to take advantage of disqualification laws in order to find a judge whom they

26 feel will cater to their interests. In Dizon, this Court warned against judge shopping." Ada, 27 2000 Guam 22 ~16. It appears that the Defendants are attempting to use Judge Barcinas' 28

Page 8 of 10 Decision and Order Civil Case No. CV1935-11

minimal involvement in CV 1431-11, serving in a temporary ex parte capacity, to require his

2 recusal from any case concerning the same parties or related matters. Because all of the judges

3 take turns serving as ex parte judge on a rotating basis, allowing parties to disqualify any judge 4 who serves in an ex parte capacity in a matter from hearing any other matters which are related 5 in some way, or in which one of the same parties are involved, would set a dangerous precedent 6 in which nearly all of the judges would be disqualified from hearing associated matters on a 7

8 regular basis. This would produce an absurd result, and would effectively allow parties to

9 "shop" for ajudge of their liking. Accordingly, the Defendants request must be DENIED. 10 CONCLUSION 11 Based on the foregoing analysis, the Court finds that the statement of objection is 12

procedurally defective as it is both untimely and fails to allege or support any grounds sufficient 13

14 for disqualification under 7 GCA § 6105(a). Consequently, recusal is not required under Title

15 7 GCA § 6107. The Court hereby ORDERS that the Statement of Objection and Motion to 16 Request Recusal of the Honorable Arthur R. Barcinas Pursuant to 7 GCA § 6105, filed by the 17 Defendants be STRICKEN. 18

19 APR 11 L012 20 IT IS SO ORDERED this _ _ _ _ _ _ _ _ __ I do hereby certify that the foregoing 21 is a full true and correct cory ,·f l!'e original on file in the officI' c: th~ 22 clerk 01 the :5upe[ior Co "c,~ ( <'. ~. 23 HONORABLE ARTHUR R. BARCINAS 24 Judge, Superior Court of Guam Deputy Clerk. Superior 25

27 Pursuant to Van Dox, 2008 Guam 7, " 12 and 24, finding that an order striking an

28 objection to competency may not alternatively be considered as an answer unless verified in the

Page 9 of 10 Decision and Order Civil Case No. CV 1935-11

manner specified by 6 GCA § 4308, the Honorable Arthur R. Barcinas hereby declares, under

2 penalty of perjury, with respect to any and all allegations of fact or statements of fact, that the

3 foregoing is true and correct. No verification is made concerning any conclusions of law. 4 APR 11 2012 5 SO DECLARED, this _ _ _ _ _ _ _ _ __

7 HONORABLE ARTHUR R. BARCINAS 8 Judge, Superior Court of Guam

20 I do hereby certify that the foregoing is a full true and correct copy of 'he 21 original on file in the offic~., H.p' cieri< 01 the Superior Co /' .: ' 22

24 Deputy Cleric SupMior C

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