Guam § 6105 - Grounds of Disqualification.

§ 6105. Grounds of Disqualification.

(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 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 not disqualify himself or herself.

(b) A Judge shall also disqualify himself or herself in the following circumstances, but if, following

complete disclosure to all parties in the proceeding of the reasons for his or her disqualification, all parties

agree to having the Judge continue to sit in the proceedings, he or she need not disqualify himself or herself:

(1) Where he or she has a personal bias or prejudice concerning a party, or personal knowledge

of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he or she served as a lawyer in the matter in controversy, or a lawyer

with whom he or she previously practiced law served during such association as a lawyer or either has

been a material witness concerning the matter;

(3) Where he or she has served in governmental employment and in such capacity participated as

counsel, advisor or material witness concerning the proceeding or, as such government employee,

expressed an official opinion concerning the merits of the particular matter in controversy;

(4) Where he or she knows that he or she, individually or as a fiduciary, or his or her spouse or

minor child residing in his or her household, has a financial interest in the subject matter in controversy

or is a party to the subject matter in controversy or is a party to the proceeding, or in any other interest

that could be substantially affected by the outcome of the proceeding;

(5) Where he or she or his or her spouse, or a person within the third degree of relationship to

either of them, or the spouse of such person:

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(A) is a party to the proceeding, or an officer, director, or trustee of a party;

(B) is acting as a lawyer in the proceeding;

(C) is known by the Judge to have an interest that could be substantially affected by the

outcome of the proceeding;

(D) is to the Judge’s knowledge likely to be a material witness in the proceeding.

(c) A Judge should inform himself or herself about his or her personal and fiduciary interests and that

of his or her spouse and minor children residing in his or her household.

(d) For the purpose of this section the following words or phrases shall have the meanings indicated:

(1) “Proceeding” includes pre-trial, appellate review or other stage of litigation;

(2) The degree of relationship is calculated according to the civil law system;

(3) “Fiduciary” includes such relationships as executor, administrator, trustee and guardian;

(4) “Financial interest” means ownership of a legal or equitable interest, however small, or a

relationship as a director, advisor or other active participant in the affairs of a party, except that:

(A) Ownership in a mutual or common investment fund that holds securities is not a financial

interest in such securities unless the Judge participates in the management of the fund;

(B) An office in an educational, religious, charitable, fraternal or civil organization is not a

financial interest in securities held by the organization;

(C) The proprietary interest of a policyholder in a mutual insurance company or a depository

in a mutual savings association or a similar proprietary interest, is a financial interest in the

organization only if the outcome of the proceeding could substantially affect the value of the

interest;

(D) Ownership of government securities is a financial interest in the issuer only if the

outcome of the proceeding could substantially affect the value of the securities.

(5) “Judge” means any Justice of the Supreme Court or Judge of the Superior Court.

1985 SOURCE: 28 U.S.C. § 455, modified by removal of subsection (e) and affirmatively permitting a judge to sit on

a case if the reasons for disqualification is disclosed to all parties and all agree to such judge continuing in the case.

The U.S. Code contains a far more comprehensive law concerning the disqualification of judges than does the Code of

Civil Procedure of Guam. It seems desirable to adopt the U.S. law in this respect. Further, the latest version of the

California Code of Civil Procedure is unsuitable as a guide to Guam because of its many amendments and references

to courts which do not exist on Guam.

1985 COMMENT: It should be noted that this Section would disqualify a judge in a proceeding where this judge is a

member of the Board of Directors of one of the parties, such as where the Public Defender Service Corporation appears

as a party to the action, in contrast to where it appears as counsel to a party. Obviously, in this latter instance, the judge

would not be disqualified. However, it seems that a judge should be disqualified in the former instance since he would

have taken an active part in the proceedings of the body and, quite probably, in the proceedings which form a part of

the dispute in question. Such disqualification is not clearly covered under § 170 of the Guam CCP.

Subsection (e) of the federal law is omitted here because some attorneys believe that no judge should be

automatically disqualified for any of the reasons stated if full disclosure is made to all parties and all parties agree that

the judge should continue. Such a situation has arisen and the judge continued to sit by agreement of all concerned.

This procedure should be allowed to continue.

2012 NOTE: In maintaining the general codification scheme of the GCA the Compiler changed the hierarchy of

subsections beginning with “Lowercase Roman Numerals” to “Uppercase Letters” in this section.

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