HAGÅTÑA (The Guam Daily Post) — The Supreme Court of Guam is considering several issues in a government corruption case that has brought into question whether a judge’s name used as a professional reference can be considered a political endorsement, as well as the process in which judges are assigned to cases.
On Monday morning, the Supreme Court of Guam heard oral arguments for a government corruption case where Department of Public Health and Social Services Director Arthur San Agustin faces charges related to approving sanitary permits for 15 public schools without legally required inspections.
The reason for the Supreme Court hearing the case, in the midst of Superior Court of Guam proceedings, stems from the fact the assigned judge, Presiding Judge Alberto Lamorena III denied his disqualification after his name was used as a professional reference on Attorney General Douglas Moylan’s resume posted on social media during his campaign last year.
The next issue was that after Lamorena made his decision, Judge Alberto Tolentino reviewed it and affirmed Lamorena’s decision, despite Tolentino having previously recused himself from the case before Lamorena was appointed.
Arguments
San Agustin’s attorneys from the Arriola law firm are requesting guidance from the Supreme Court of Guam on the two issues and seeking remedies either by having Lamorena disqualified from the case outright or having another judge review the statement of objection to disqualify Lamorena, thus vacating Tolentino’s decisions.
Attorney William Brennan started off the oral arguments by first referring to Guam law, which states a judge who is disqualified should be disqualified from all proceedings.
“The court therefore must find that Judge Tolentino abused his discretion when he resumed jurisdiction over a case in which he previously disqualified himself,” Brennan said before addressing questions from justices whether another objection should have been filed once Tolentino was assigned.
Brennan conceded it should have been, despite stating the clerk of court was contacted.
However, Brennan added it is their position no additional statement was needed.
Then Brennan addressed the use of Lamorena’s name on Moylan’s resume posted on social media, calling it “inappropriate” and a “political endorsement” which could show apparent bias toward Moylan and the Office of the Attorney General.
While there was back-and-forth discussion between Brennan and the justices regarding whether the use constitutes an endorsement, Brennan responded a “reasonable observer” may see it that way.
Then, the discussion touched on the fact Lamorena wasn’t aware his name was being used and Associate Justice F. Philip Carbullido questioned what difference would it have made if Lamorena had not requested the social media post be taken down, which is what Lamorena has done.
“It absolutely makes a difference, Your Honor, because now, as we’ve put forward in our papers, we think that is a demonstration of the appearance of actual bias,” said Brennan who added even if Lamorena had requested it be taken down, he would’ve been criticized. However, it’s not of San Agustin’s “making.”
Brennan also explained Lamorena doing nothing benefits Moylan and the AG’s office.
“That would be the presentation of bias, and that benefits Mr. Moylan. … It doesn’t benefit Mr. San Agustin, and it’s not a neutral stance in our view. We have put forward that this is an endorsement publicly that is on the campaign Facebook page of this candidate, which is now used by the AG to issue press releases,” said Brennan.
“We’re going to have a jury selection at some point and whether this post is up or not, makes a huge difference as to whether a question is ‘Have you ever seen the social media posts affecting the judge?’ versus ‘Have you seen this endorsement of the attorney general by the presiding judge sitting in this case?'” Brennan added.
Interested parties
Following Brennan’s half hour of arguments, Patrick Civille, attorney for DPHSS Chief Environmental Health Officer Masatomo Nadeau, who is San Agustin’s co-defendant facing similar charges, expressed the most concern over the fact Lamorena hadn’t done anything to get Moylan’s post taken down.
“When he did become aware of it, he should have immediately taken action, and he didn’t. … But I think the perception of partiality is created in this case first and foremost by candidate Moylan, improperly using Judge Lamorena’s seeming endorsement to promote his candidacy,” Civille said.
“But then, secondly and once again, I’m not trying to blame Judge Lamorena for this but the better course of action, … the proper thing to do is, once the judge knows about it, … (is) to take steps, if possible, to disassociate from that perceived partiality,” added Civille, who also agreed with Brennan on the other issue that Tolentino should not have been assigned to the case again after recusing himself.
Another interested party in the matter was the AG’s office – represented by Lewis Kenneth Harley at the oral arguments.
Harley argued there was no “real substance” for Lamorena to be disqualified.
“The judge didn’t have a Facebook account. So (it was) something that was 30 years ago. And if we open the door where a judge’s recusal or even competency as a professional is put into questions, … then any judge can be recused,” Harley said before Carbullido questioned whether the higher court should focus more on Moylan rather than Lamorena.
“The focus should be very narrow,” Harley responded. “I’m suggesting this actual substantial and nonspeculative standard that is addressed as to Attorney General Moylan and his personal capacity as it relates to this specific case.”
Harley, who argued San Agustin’s petition should be denied, further added the arguments have been premature.
The AG’s office’s answer to the petition, according to Chief Justice Robert Torres, Jr. at the start of the hearing, did not meet the standards as it “failed to admit or deny the allegations that were contained in the petition.” As a result, the AG’s office will have until Wednesday to submit their reply and was issued an order to show cause for “why they shouldn’t be sanctioned for a failure to file a compliant brief,” Torres explained.
Superior Court
Considering San Agustin’s petition was filed against the Superior Court of Guam, staff attorney Suzane Santiago-Hinkle was also present at the oral arguments and gave her response.
Santiago-Hinkle primarily discussed the matter of Tolentino being reassigned to the case after he recused himself, and argued the policy in place leaves it up to the judge’s discretion on whether they should recuse themselves in a case.
She also explained the procedure to randomly assign cases to judges was followed. However, it can allow judges to be assigned even if they had previously been disqualified.
“It was explained to me that judges are not automatically disqualified based on a prior disqualification, even when the case is assigned for a recusal question,” Santiago-Hinkle said as she was met with confusion by the justices.
While she continued to assert the judges have discretion to disqualify themselves, Santiago-Hinkle essentially asked the Supreme Court to clarify the rule and procedures.
Rebuttal
With seven minutes to respond to all the arguments, Brennan had the last word in his rebuttal, where he spent most of the time responding to the suggestion Moylan should be the focus rather than the judges.
Torres in particular asked if Moylan being disqualified would resolve the issue.
Brennan responded there are motions to dismiss and to disqualify the AG’s office where Moylan will be called to testify and disqualifying Moylan as an attorney would not be enough.
“Even if we get to call Mr. Moylan in this case, (it) will be (a) substantive issue that will affect how this trial will go – if there is a trial. It is not enough that he’d be disqualified as an attorney,” said Brennan.
In closing, Brennan discussed the effects that would result in letting “this slide.”
“Once we get into a realm where if you let this slide and AG Moylan is allowed to do this and every candidate here on out for AG is allowed to publish materials about when they were a research attorney of the Supreme Court of Guam (and) when they were a law clerk at the Superior Court of Guam, … inherently, we’re going to get into (a) situation where public confidence in the institution will be diminished,” said Brennan who discussed the small community and size of families on island.
“That is what’s at stake here and while that is a huge normative consideration, I’d ask you to consider this case to ground it. … (San Agustin’s) entitled to a decision maker on that bench who is not the professional reference of the same person that’s prosecuting,” Brennan concluded.
Joaquin “Jay” Arriola Jr. who is also representing San Agustin and was present at the oral arguments, also gave a comment to The Guam Daily Post after the hearing.
“This is a special proceeding before the Supreme Court that seeks to preserve the integrity and impartiality of the Judiciary and uphold every citizen’s right to have their entire case tried by a fair and impartial judge,” Arriola said.
“The justices’ questions reveal they are indeed faced with a case that challenges these basic rights. The right to a fair and impartial judge is paramount in order to have faith and trust in our system of justice,” Arriola added.
After the arguments, the Supreme Court took the matter under advisement.
DPHSS Director Arthur U. San Agustin gives the Welcoming Remarks at the Emergency Medical Services 2023 Awards Ceremony Monday Oct. 23, 2023 in Tumon.
Masatomo “Tom” Nadeau, chief environmental health officer at the Department of Public Health and Social Services, arrives ahead of his court hearing on Tuesday, Aug. 29, 2023, at the Guam Judicial Center in Hagåtña.
