HAGÅTÑA (The Guam Daily Post) — Department of Public Health and Social Services Director Arthur San Agustin will appear before the Supreme Court of Guam on Monday for a case in which he faces corruption charges related to approving sanitary permits for public schools without any legally required inspections.
San Agustin and his attorney, Joaquin “Jay” Arriola Jr., are seeking answers from the Supreme Court as to why Presiding Judge Alberto C. Lamorena III should be allowed to preside in the corruption case considering Lamorena’s alleged endorsement of Attorney General Douglas Moylan.
After San Agustin and Public Health’s Chief Environmental Health Officer Masatomo “Tom” Nadeau were indicted in July on charges related to approving sanitary permits for 15 public schools without any legally required inspections, the case was brought to a halt in August when San Agustin objected to Lamorena sitting as the judge on the case.
According to their objection, during Moylan’s campaign for attorney general last year he posted his resume to his Facebook page which included Lamorena as a “professional reference.” Arriola argued that Lamorena violated the Code of Judicial Conduct by publicly endorsing a political candidate.
In response, Lamorena asserted he should not be disqualified from presiding as a judge in the case. Judge Alberto Tolentino also reviewed the request and came to the conclusion that there were no grounds to disqualify Lamorena.
Potential conflict
With San Agustin taking the case to the Supreme Court, he seeks answers primarily on whether Tolentino should have made the decision about whether to disqualify Lamorena after Tolentino previously disqualified himself because of a conflict of interest.
The document filed with the Supreme Court is called a writ of prohibition, which may be issued “when there is no plain, speedy, adequate remedy at law” and may be petitioned upon denial of disqualification of a judge in the Superior Court.
Arriola, in the writ, cited a part of Guam law that stated a judge, if disqualified, may not preside over any issues pending in the case.
“Therefore, once Judge Tolentino was disqualified, it was improper for him to preside over and decide any issues pending in (San Agustin’s case),” Arriola wrote, adding the Superior Court provided no authority that a judge who was disqualified may preside after being disqualified.
If the Supreme Court disagrees Tolentino improperly presided over the case after being disqualified, Arriola argued Tolentino’s decisions to not disqualify Lamorena “were in error and should be vacated.”
Arriola stated the fact Tolentino focused on the most – that Moylan was Lamorena’s law clerk – was not the main reason Lamorena needed to be disqualified.
Rather it was the fact Lamorena was used as a “professional reference,” Arriola stated.
“The use of the Presiding Judge’s name and title gave rise to the implication that the Presiding Judge agreed that AG Moylan was qualified to be AG, and that AG Moylan was qualified to achieve his campaign goals, including related to prosecuting ‘government corruption,’” Arriola wrote.
Additionally the fact Lamorena didn’t know his name was being used, negatively impacts San Agustin’s right to a fair trial.
“The Presiding Judge only denied he knew the posting of the information on AG Moylan’s campaign Facebook page. This demonstrates actual bias in favor of AG Moylan, and negatively impacts San Agustin’s right to a fair and impartial judge to preside over this serious felony criminal matter,” Arriola wrote. “Judges are prohibited from directly or indirectly taking part in any political campaign.”
Hearing
San Agustin’s case will go before the Supreme Court on Monday at 10 a.m. where justices will hear arguments on both sides.
After the hearing, San Agustin, as outlined in the writ, seeks to have Tolentino’s decisions vacated and prohibit Lamorena from holding hearings for the case until another judge who wasn’t disqualified reviews the statement of objection. San Agustin also seeks to have Lamorena disqualified outright and have the case reassigned to a judge who has not been disqualified.
Arthur San Agustin, director of the Department of Public Health and Social Services, arrives at the Guam Judicial Center in Hagåtña ahead of a court hearing on Aug. 29, 2023.
