Untalan v. Stahl

Opinion

IN THE SUPERIOR COURT OF GUAM

RICHARD J. & EDWARD G. UNTALAN, ) CIVIL 2 ) 3 Plaintiffs, ) v. ) DECISION AN~ ORD:ER QK~~~ 4 ) DEFENDANT'S OBJECTION CHRISTOPHER STAHL, ) TO AND REQUEST FOR 5 DISQUALIFICATION OF JUDGE 6 Defendant. ~ UNDER 7 GCA § 6105(a) AND § 6107 ) 7

8 INTRODUCTION 9 This matter came before the Honorable Maria T. Cenzon on Defendant Christopher 10

II Stahl's ("Defendant") Objection to Judicial Competency ("Objection"). Defendant objects to

12 the Honorable Judge Vernon P. Perez (hereinafter "Judge Perez") continuing to preside over the 13 above captioned case and requests the case be reassigned to another judge. Attorney Ron 14 Moroni represents Defendant and filed the Objection on his behalf. Plaintiffs did not file any 15 objection to Judge Perez's competency to preside over this matter. 16

17 Having considered the Objection of the Defendant and Answer of Judge Perez, as well

18 as the applicable statutes and case law and the relevant portions of the record, this Court issues 19 the following VvTitten Decision and Order DENYING the Plaintiffs request to disqualify Judge 20 Perez and reassign this case. 21

22 RELEVANT BACKGROUND

23 The original action involved a claim filed by Plaintiffs Richard J. Untalan and Edward 24 G. Untalan ("Plaintiffs") against Defendant for breach of promissory note. Complaint at 1, ~ 1 25 (Aug. 3, 2011). Defendant filed his Answer on September 9, 2011. Answer (Sept. 9, 2011). 26 Subsequent to the filing of Defendant's Answer, however, the parties stipulated to allow the 27

28 Defendant to file a Third Party Complaint against Gutierrez Stahl ("Gutierrez Stahl"), as Third Party Defendant, which was granted by Judge Perez on June 5, 2011. Stipulation Re: Thrid

2 [sic] Party Complaint (June 5, 2012). The Third Party Complaint alleged that Gutierrez Stahl,

3 as his former wife, was liable for any amounts which may be adjudicated as due to plaintiffs as 4 the "community debt of Christopher and Carla Stahl pursuant to 19 GCA 6102 for which 5 Christopher and Carla Stahl are jointly liable." Third Party Complaint at 2, ~~ 4-6 (June 14, 6 2012). On August 9, 2012, default was entered against Gutierrez Stahl for her failure to plead 7

8 or otherwise defend against the Third Party Complaint within the time allowed by law. Entry of

9 Default (Aug. 9, 2012). Following the entry of default against Gutierrez Stahl, Plaintiff and IO Defendant continued to litigate their claims before Judge Perez. II On October 2, 2012, Gutierrez Stahl moved to vacate the entry of default because she I2

I3 had not been personally served with and had no knowledge of Stahl's claims against her as set

I4 forth in the Third Party Complaint. Mot. To Vacate Entry of Default at 2 (Oct. 2, 2012). I5 Defendant opposed her motion on February 14, 2013. Opp. To Third Party Defendant's Mot. to I6 Vacate Entry of Default (Feb. 14, 2013). On March 1, 2013, during the hearing on Gutierrez 17 Stahl's motion, Judge Perez granted her request to vacate the default and allowed her to file her I8

I9 response within twenty days thereafter. Minute Sheet (Mar. 1, 2013). At the hearing, Judge

20 Perez also disclosed that he was acquainted with the family, but that it did not require his 21 recusal and that he would be "fair and impartial." /d On July 31, 2013, Judge Perez filed a 22 Notice of Disqualifying Facts in which he disclosed the following: that he has known the family 23 of Gutierrez Stahl and was inducted into a religious order along with Gutierrez Stahl's mother 24

25 and "forty or more people," which group meets "in group setting for religious events and not

26 very often." Not. Of Disqualifying Facts at 1 (July 31, 2013). He further stated that "because 27

-2- this is not a domestic case involving the custody of the grandchildren of Mrs. Gutierrez, I

2 believe I can be fair and impartial in adjudicating the matter." !d.

3 LAW AND ANALYSIS 4 1. The Statement of Objection is Procedurally Defective. 5 Judicial disqualifications in Guam are governed by the substantive rules of 7 GCA § 6 6105 and the procedural rules of 7 GCA § 6107. Objections to competency, when a judge 7

8 neglects or fails to declare his disqualification, must set forth the fact or facts constituting the

9 ground of disqualification of the judge and shall be served by the presenting party on each party, 10 or his attorney who has appeared in the action, and on the judge alleged in such statement to be II disqualified. 7 G.C.A. § 6107. Section 6107 requires that statements of objection (1) "be 12

13 served ... on the Justice or Judge alleged in such statement to be disqualified," (2) "be verified in

14 the manner prescribed for the verification of pleadings," and (3) "be presented at the earliest

15 practicable opportunity.... " !d. A party's failure to comply with any of these requirements 16 constitutes sufficient grounds to strike or disregard the statement of objection. People v. Johnny, 17 2006 Guam 10 ~ 11 (citing Long Term Credit Bank of Japan v. Superior Court, 2003 Guam 10 18

19 ~ 43)(observing that "because service was deficient, the [challenged judge] was not required to

20 file an answer."). 21 A. A recusal statement must be served upon the judge personally. 22 The Guam Supreme Court has held that "under section 6107, a recusal statement must 23 be served on the judge personally, into the judge's hands." Long Term Credit Bank of Japan, 24

25 2003 Guam ~ 40. It is unclear from the record whether the Defendant's statement, filed on

26 August 9, 2013, was personally served upon either the non-objecting parties (namely, Plaintiffs 27 Richard J. Untalan and Edward G. Untalan and Third-party Defendant Carla Stahl) or upon 28

-3- Judge Perez, or, if it had been placed "into the judge's hands," when it was so served. If it is

2 improperly served, a statement of objection is formally defective and may be stricken. Van Dox

3 v. Ct. (Alcorn), 2008 Guam 7 ,, 25-26 (citing People v. Johnny, 2006 Guam 10). 4 Moreover, where service is deficient, the judge is not required to file an answer. Long Term 5 Credit Bank, 43. However, this procedural defect was waived by Judge Perez when he failed 6 to raise the defect in his Answer. !d. 7

8 B. The recusal statement was defective because it was not verified in the manner prescribed for pleadings; however, the defect was waived. 9 The statement of objection was also defective in that it failed to "be verified in the lO

II manner prescribed for the verification of pleadings" as required under section 61 07. In Long

12 Term Credit Bank, the Supreme Court indicated that a verification pursuant to 6 G.C.A. § 4308 13 ("I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and 14 correct. Executed on (date). (Signature).") is sufficient to comply with the verification 15

16 requirement of section 6107. !d. at fn. 16. However, the statement filed by the Defendant fails

17 to contain any such verification. The next question is whether this procedural defect may also 18 be waived if not raised by the judge in his answer. Although the Supreme Court noted that a 19 party's failure to comply with any of the requirements in Section 6107 is sufficient to strike or 20 disregard the statement of objection (Johnny at , 11 ), the Court has also held that an objecting 21

22 party's failure to comply with at least one of the requirements may be waived if not raised in the

23 judge's answer. See Long Term Credit Bank, 43. 24 With regard to a statement of objection that also fails to contain a statement of 25 verification, the Guam Supreme Court has not addressed this issue in the context of judicial 26

-4- recusals except tangentially; 1 however, the Court has indicated that dismissal or disregard of the

2 statement of objection may be "too harsh" a result. Agana Beach Condominium Homeowners '

3 Assoc. v. 1Hajnas, 2013 Guam 9 ,, 41-47 (comparing the requirement in section 6107 4 governing recusal of judges that statements of objection may be verified in the manner 5 prescribed for verification set forth in 6 GCA § 4308 to verification requirement in pleading but 6 holding that, while the trial court did not err in finding the petition not properly verified, it erred 7

8 in dismissing the case)(citing Lang Term Credit Bank of Japan v. Superior Court, 2003 Guam

9 10 , 42 n.l6 (numerous citations omitted)? In any event, because this defect was not raised in 10 Judge Perez's Answer, it is waived. II C. The Court cannot determine from the record if the Answer was timely. I2

13 The Answer (Statement of Objection) filed by Judge Perez does not indicate whether he

I4 received personal service of the Objection or, if he was personally served, when this occurred. I5 In addition, the Court will not presume that personal service had been made on the date of the I6 filing of the Objection because this is an affirmative duty on the part of the party seeking the I7 disqualification to establish. 7 GCA § 6107 ("Copies of such written statement shall forthwith I8

I9 be served by the presenting party on each party, or his or her attorney, who has appeared in the

2I 1 22 See, e.g., Van Dox v. Super. Ct (Alcorn), 2008 Guam 7, 26 ("A statement is fonnally defective if it is improperly served, not verified, or untimely.")(citing 7 GCA § 6107; Krebs v. L.A. Ry. Corp., 61 P.2d 931,93334 (Cal. 1936)). 2 23 Cf Van Dox , 22 ("The [judge's] answer must be 'verified in the manner prescribed for the verification of pleadings.' 7 GCA § 6107. If an answer is not verified, then the answer is inadequate and may be 24 disregarded'')(emphasis added). Although Section 6107 provides that the judge's answer "must be verified in the manner prescribed for the verification of pleadings" which appears to be mandatory, rather than discretionary, the 25 Supreme Court's opinion in Van Dox implies otherwise, and even if a judge's answer is inadequate due to the failure to include a verification clause, it may be disregarded, or it may be considered by the recusal judge. This would 26 appear to strike a balance in the event that an objection which does not contain a verification clause is not be dismissed, allowing a judge's equally defective answer to be considered at the discretion of the recusal judge. 27 Indeed, a recusal judge may schedule a hearing on the objection at its discretion and may then swear in a judge prior to taking testimony during the hearing. This is evidenced by the Court finding in Van Dox that "(i]f [Judge Steven 28 Unpingco's] striking of the statement of objection was an abuse of discretion, then he will be deemed to have waived his answer and consented to his disqualification." ld, 24.

-5- action or proceeding and on the Justice or Judge alleged in such statement to be

2 disqualified")( emphasis added); Long Term Credit Bank ofJapan ~40.

3 Judge Perez's Answer declares only that he has "reviewed the Statement of Objection" 4 in issuing his response. Answer (Statement of Objection) at I (Aug. 28, 2013). Thus, this 5 reviewing court is unable to determine (1) whether the Objection is procedurally defective due 6 to failure of service and (2) whether Judge Perez's Answer, filed on August 28, 2013 -more 7

8 than I 0 days after the filing of the Objection was timely. The result is that this Court will not

9 strike the Objection in the first instance, nor will it find that Judge Perez has consented to the 10 disqualification by the filing of his Answer more than 10 days after the Defendant filed the II Objection. Instead, the Court determines that the Objection is insufficient as a matter of law in 12

13 that it "fails to allege 'any facts that would serve as grounds for disqualification under Guam

14 law .... "' Van Dox ~ 27 (citing Johnny~ I9). 15 2. Statement of Objection is Legally Insufficient. 16 Petitioner in his Objection bases his claim for the disqualification of Judge Perez solely 17 upon 7 GCA § 6105(a), which provides that "[a]ny Judge shall disqualify himself or herself in 18

19 any proceedings in which his or her impartiality might reasonably be questioned..... " Under

20 Guam law, "what matters is not 'actual bias,' but 'the appearance of bias."' Van Dox ~ 32 21 (citing Dizon v. Super. Ct., 1998 Guam 3 ~ 8). In evaluating Petitioner's claims, this Court 22 assumes as true all evidence found in the record and in the Objection and attached Affidavits, 23 even if uncorroborated by additional evidence, and applies "the standard of a 'reasonable 24

25 person' who knows all the facts, and understands the 'contexts of the jurisdictions, parties, and

26 controversies involved .... "' Van Dox ~ 32, quoting Ada v. Gutierrez, 2000 Guam 22 ~~ 12-13. 27 Moreover, "[a] court should not hypothesize about what the reasonable person would believe 28

-6- only upon hearing the moving party's allegations. Instead, it should decide what the reasonable

2 person would believe about a judge's partiality given all the relevant facts in the controversy."

3 Ada, 12. 4 On its face, the Objection itself does not allege facts which a reasonable person with 5 knowledge of these facts, taken in the context of the jurisdictions, parties and controversies 6 involved, which rise to the level of "bias or prejudice against an attorney ... so virulent as to 7

8 amount to bias against the party." (Van Dox, 34, citing United States v. Burt, 765 F.2d 1364,

9 1368 (9th Cir. 1985). Defendant Stahl's objection notes that Judge Perez "has known the family 10 for many years casually in political activity contexts as well as growing up in adjacent villages." II Objection (Aug. 9, 2013)(emphasis added). This admittedly "casual" relationship based on a 12

13 vague reference to "political activity contexts" as well as "growing up in adjacent villages" is

14 insufficient to justify the disqualification of Judge Perez. Indeed, even if one were to assume 15 arguendo that Judge Perez had been appointed by the former Governor Carl T.C. Gutierrez, who 16 is Defendant's former spouse's father, this fact alone would not necessarily be sufficient 17 grounds to disqualify him from presiding over this case. See Ada v. Gutierrez, 2000 Guam 22 , 18

19 13 ("the realities of the Guam judicial system should play a part in the application of the

20 reasonable person standard" including the relative seclusion of the Guam political system and 21 the nature of Guam families). 3 Additionally, there is nothing in the Objection that alleges that 22 Judge Perez has committed any of th;tt iWt&,~ich the ABA Code of Judicial Conduct lists as 23

25 3 26 Although the Guam Supreme Court applied the rule of necessity in Ada in reaching its decision that Judge Joaquin Manibusan was not disqualified from presiding over that case notwithstanding various tentacles connecting him or 27 his family members to Governor Gutierrez, the High Court also held that it was not necessary that each of the seven judges of the Superior Court first disqualifY themselves before applying the rule of necessity in that case, stating 28 "[w]e see no legitimate reason to waste time and other resources when we can apply the rule of necessity immediately." Ada at~~ 14 and 22.

-7- "inappropriate political activity." See MODEL CODE OF JUDICIAL CONDUCT Canon

2 5(A)(l )(1990).

3 Moreover, the Guam Supreme Court has issued a caveat following Dizon: 4 Notwithstanding our goal in Dizon to encourage disclosure of facts 5 and urge judges to examine their potential for bias, we still noted, "[T]he recusal statutes should not be so broadly construed so as to 6 become presumptive ... " Dizon, 1998 Guam 3 at ~ 9. A judge's duty to hear a case and keep the wheels of justice rotating is just as 7 strong as his or her duty to remove himself or herself if a 8 reasonable person would not believe in his or her impartiality. Kansas Public, 85 F.3d at 1362; In re Allied-Signal Inc., 891 F.2d 9 at 970; National Union, 839 F.2d at 1229. We would not want judges to construe our decision in Dizon to mean that they should 10 distance themselves from cases at the slightest suggestion. II

l2 Ada ~15. The Objection seeks to disqualify Judge Perez from presiding over this matter 13 because he, along with Defendant's ex-spouse's mother, "along with forty or more people," 14 were indicted into a religious order. Objection (Aug. 9, 2013). As discussed above, on the face 15

16 of the Objection, the fact that Judge Perez and over forty people, including the Defendant's 4 17 former mother-in.:.law, is not sufficient to disqualify Judge Perez in the context of this case. 18 CONCLUSION 19 For the reasons stated above, Defendant's Objection and Request for Disqualification 20

21 and Reassignment of Case is DENIED. SO ORDERED this ~rl day of February, 2014. 22

24 Judge, Superior Court of Guam 25

26 4 27 In this particular instance, Judge Perez answered that the facts listed in Defendant's statement of objection "are legally inadequate to cause a reasonable person to question the Court's impartiality in this matter." Answer at 2. 28 This Court agrees and submits that Judge Perez had the authority, without this matter having to be assigned to a recusal judge, to strike or disregard it. Van Dox ~ 25 (citing Johnny, 2006 Guam~~ 12, 19, 22 (footnote omitted)).

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