Arthur v. Superior Court, (2024)

1

2024 Guam 2

IN RE ARTHUR U.SAN AGUSTIN, Petitioner, v. SUPERIOR COURT OF GUAM, Respondent, PEOPLE OF GUAM, Real Party in Interest, MASATOMO NADEAU, Real Party in Interest.

No. WRP23-002

Supreme Court of Guam

July 18, 2024

Argued and submitted on November 20, 2023 Hagåtña, Guam

Superior Court Case No. CF0446-23

Appearing for Petitioner: Joaquin C. Arriola, Jr., Esq. (briefed) William B. Brennan, Esq. (argued) Arriola Law Firm

Appearing for Real Party in Interest Nadeau: G. Patrick Civille, Esq. Civille & Tang, PLLC

Appearing for Respondent: Suzane P. Santiago-Hinkle, Esq. Superior Court of Guam

Appearing for Real Party in Interest People of Guam: Gloria Ann L. Rudolph, Esq. (briefed) Lewis K. Harley, Esq. (briefed & argued) Office of the Attorney General

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

OPINION

ROBERT J. TORRES CHIEF JUSTICE

[1] Petitioner Arthur U.San Agustin filed a Verified Petition for a Writ of Prohibition asking this court to vacate the decisions of Judge Alberto E. Tolentino sitting as a recusal judge on the question of Presiding Judge Alberto C. Lamorena Ill's disqualification in San Agustin's criminal case. San Agustin also asks that we exercise our authority in this original proceeding to disqualify Presiding Judge Lamorena. Respondent Superior Court of Guam and Real Parties in Interest People of Guam and Masatomo Nadeau^[1] were given the opportunity to answer the petition. In an Order issued December 5, 2023, this court granted the petition in part and ordered further proceedings. We issued another order on December 19, 2023.

[2] We grant the petition for a writ of prohibition in part and vacate the orders of Judge Tolentino deciding the disqualification issue, and we deny in part the petition to disqualify Presiding Judge Lamorena. We also exercise our supervisory authority to clarify the proper procedures (1) when a party seeks to challenge a recusal judge for cause, (2) for service of a writ petition, and (3) for service of a statement of objection on a judge or justice. We also refer Attorney General Douglas B. Moylan's conduct to the Office of Regulation Counsel.^[2]

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] The criminal case that is the basis for this original proceeding was brought by the People against San Agustin and a co-defendant, Masatomo Nadeau. V. Pet. at 5 (Oct. 11, 2023). San Agustin was initially charged with multiple counts of Tampering with Public Records (as a 3rd Degree Felony), one count of Official Misconduct (as a Misdemeanor), and one count of Obstructing Governmental Functions (as a Misdemeanor) for actions that allegedly occurred while he was serving as Director of the Guam Department of Public Health and Social Services. That indictment has since been amended to bring additional counts against San Agustin.

[4] The case was assigned to Judge Alberto E. Tolentino. Judge Tolentino filed a Form One - Disqualification, disqualifying himself under 7 GCA § 6105 from presiding over the case. Judge Tolentino asserted that he, his wife, and his chamber clerk have or had close relationships with San Agustin and Nadeau, concluding this could create a conflict.

[5] The case was eventually reassigned to Presiding Judge Alberto C. Lamorena III. San Agustin filed a Statement of Objection to Presiding Judge Lamorena's competency to preside. San Agustin argued that Presiding Judge Lamorena's participation would create an appearance of bias based on a Facebook post made in 2022 by then-candidate for Attorney General Douglas Moylan. He claims that Moylan used Presiding Judge Lamorena's name, title, and identification as a "Professional Reference" in campaign materials posted to a personal and campaign Facebook page. V. Pet. at 6 (citing Ex. B (Statement Obj., Aug. 22, 2023)).

[6] Presiding Judge Lamorena answered the Statement of Objection denying that San Agustin's allegations required his disqualification. The matter was ultimately referred to Judge Tolentino solely to assess whether Presiding Judge Lamorena should be disqualified. According to the Superior Court, assignment of recusal judges is based on a single randomized list of Superior Court judges cycled through every time a statement of objection is filed without regard to disqualification in the underlying matter. Oral Arg. at 10:49:16-10:51:46 (Nov. 20, 2023). Judge Tolentino issued a Decision and Order which concluded Presiding Judge Lamorena's disqualification was unnecessary. San Agustin then moved for reconsideration on several bases, including that Judge Tolentino was already disqualified in CF0446-23 and should not decide San Agustin's statement of objection. Judge Tolentino issued a second Decision and Order denying the motion for reconsideration.

[7] San Agustin filed a Verified Petition for a Writ of Prohibition in this court. We issued an Order inviting the Superior Court to address the petition and ordering real parties in interest to file answers to the petition, which they respectively did. But the Superior Court and the People did not file answers that denied or admitted the factual allegations in San Agustin's petition. We issued a briefing schedule, and the issues raised by the petition were briefed. Oral argument was held, and the Superior Court and the People were ordered to file answers either admitting or denying the factual allegations in the petition. Both parties complied, and the answers were received. The facts recounted above are generally undisputed by the parties, although they disagree about their legal significance. See Resp't's Answer at 2-3 (Nov. 22, 2023); People's Answer at 3-5 (Nov. 22, 2023).

[8] On December 5, 2023, we issued an order granting in part the petition and vacating the decisions of Judge Tolentino. We gave Presiding Judge Lamorena leave to amend his answer to San Agustin's statement of objection and ordered further original proceedings. We also made factual findings, resolving the conflicts about the significance of Moylan's Facebook post. We found that the curriculum vitae ("CV") was published as part of campaign material posted on Moylan's social media page used to publicly announce policy goals and gamer support for Moylan's candidacy and policies:

Nadeau and San Agustin raise a salient point that Moylan was not applying for a position or seeking a private recommendation-he was running for public office. Generally, one does not publish a Curriculum Vitae for public consumption as part of a job application process. It would have been highly unusual for Moylan to post a CV on his public Facebook page if he were applying for a position in private practice. The conclusion that the CV was campaign material is also strengthened by its contents: under the experience section, Moylan lists what seem to be policy positions, while other portions of his CV seem out of place in a professional document.^[3] C/ 3 GCA § 17101(a) (defining campaign advertisement as "any communication . . . which identifies a candidate directly or by implication, or which advocates or supports the nomination for election of the candidate . . .."); 3 GCA § 17120(a) ("No person shall cause or submit any advertisement in support of a candidate to be published, . . . posted on-line, ... or otherwise circulated and distributed, except under the following conditions . . . .").

Order at 14 (Dec. 5, 2023) (alterations in original).

[9] After receiving Presiding Judge Lamorena's amended answer, we made these other factual findings:

On August 28, 2022, then-candidate for Attorney General Douglas Moylan posted to his public Facebook page a "curriculum vitae" ("CV"). The Facebook page was used for campaign advertisement. The CV was campaign literature which identified Moylan as a candidate for Attorney General by implication. The CV used Presiding Judge Lamorena's name, title, and identification as a "Professional Reference."

Presiding Judge Lamorena did not know of his reference in the CV, and he did not publicly endorse Moylan for the position of attorney general. Presiding Judge Lamorena did not permit Moylan to use him as a public professional reference for Moylan's qualifications to serve as attorney general.

The CV remained accessible on Moylan's Facebook page-including after the indictment of San Agustin was announced via press release on that same page- until the post was deleted on December 5, 2023. Presiding Judge Lamorena amended his answer on December 11, 2023. He stated that,

I am prepared to take the necessary steps to cure any remaining "appearance of bias," and ensure the perception of impartiality remains. I am also prepared to demand that Attorney General Moylan immediately remove any publications which use my name and title as a reference in all media outlets, including but not limited to, social media platforms or websites. Within seven (7) calendar days of receiving the Supreme Court's Order, I will cause to deliver a letter addressed to Attorney General Moylan instructing him to delete any existing publications and to refrain from using my name and title as a reference in any public forums including but not limited to social media livestreams, speeches, lectures, interviews, webinars, memos, correspondence, or other future communications without my consent or knowledge.

Presiding Judge Lamorena stated "unequivocally" that Attorney General Moylan is not in a special position to influence him and that Attorney General Moylan's use of his name and title in his August 2022 Facebook post was a unilateral action by him. Attorney General Moylan confirmed he "never sought out nor asked Presiding Judge Lamorena to publish" his CV "before or after it was published on Facebook."

Order at 2-3 (Dec. 19, 2023) (...