enever a Justice or Judge who shall be disqualified under the provisions of this Chapter to sit or act as such in any action or proceeding pending before him or her neglects or fails to declare his or her disqualifica- tion in the manner provided by this Chapter, any party to such action or proceeding who has appeared therein may present to the court and file with

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the clerk a written statement objecting to the hearing of such matter or any trial of any issue of fact or law in such action or proceeding before such Justice or Judge, and setting forth the fact or facts constituting the ground of the disqualification of such Justice or Judge. Copies of such written statement shall forthwith be served by the presenting party on each party, or his or her attorney, who has appeared in the action or proceeding and on the Justice or Judge alleged in such statement to be disqualified.

Within ten (10) days after the service of such statement as above provided, or ten (10) days after the filing of any statement, whichever is later in time, the Justice or Judge alleged therein to be disqualified may file with the clerk his or her consent in writing that the action or proceeding continue without him or her, or may file with the clerk his or her written answer admitting or denying any or all of the allegations contained in such statement and setting forth any additional fact or facts material or relevant to the question of his or her disqualification. The clerk shall forthwith transmit a copy of the Justice””s or Judge””s consent or answer to each party or his or her attorney who shall have appeared in such action or proceeding. Every such statement and every answer shall be verified in the manner prescribed for the verification of pleadings. The statement of a party objecting to the Justice or Judge on the ground of his or her disqualification shall be presented at the earliest practicable opportunity after his or her appearance and discovery of the facts constituting the ground of the Justice””s or Judge””s disqualification, and in any event before the commencement of the hearing of any issue of fact in the action or proceeding before such Justice or Judge.
No Justice or Judge who shall deny his or her qualification shall hear or pass upon the question of his or her own disqualification, but in every case the question of the Justice””s or Judge””s disqualification shall be heard and determined by some other Judge. The Presiding Judge, or next senior Judge, if it is the Presiding Judge””s disqualification that is being requested, shall make such assignment within five (5) days after receiving from the clerk the notice that the statement of disqualification has been filed. In the case of a Justice””s disqualification, the matter shall be heard by the Supreme Court constituted without the questioned Justice.
If such Judge admits his or her disqualification, or files his or her written consent that the action or proceeding be tried before another Judge, or fails to file the answer within the ten (10) days allowed, or if it shall be determined after the hearing that he or she is disqualified, the action or proceeding shall be heard and determined by another Judge of the Superior Court who is not disqualified. Such other Judge shall be assigned in the

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same manner as the Judge who was disqualified was assigned to hear the case initially.
If such Justice admits his or her disqualification, or files his or her written consent that the action or proceeding be tried without his or her participation, or fails to file the answer within the ten (10) days allowed, or if it shall be determined after hearing that he or she is disqualified, the action or proceeding shall be heard and determined by the Supreme Court with the participation of an Associate Justice pro tempore, appointed as provided in § 6108 of this Title.

1985 SOURCE: Portions of § 170, CCP of California.

1985 COMMENT: This drafter has heard many comments from attorneys who have objected to the procedure provided in the Guam CCP. Many attorneys have shown a preference for the California method of determining disqualifications. However, the California CCP, § 170, is adapted to the multiple-court system in California. Such a system cannot be transferred without change to Guam because of our unified, single court system. Therefore, this Section adopts those portions of California § 170 which deal with the procedure, but not substance of judicial disqualifications and they have been adapted to Guam.

Not included is an equivalent of California CCP § 170.6 – relative to disqualification for prejudice. Under this law, an attorney could, by filing an affidavit only, require that a judge recuse himself. After receiving comments on both sides of this question, this drafter believes that the foregoing sections provide adequate relief for judicial bias, prejudice and conflict of interest. To add the California law permitting automatic disqualification upon an affidavit of prejudice could, in practice, result in the Bar making de facto assignments of judges on the Court. The procedure provided here allows an unbiased review of disqualification, but does not permit automatic disqualification without the judge””s having met specific grounds of disqualification.