--- Am. Tribal Law ----, 2018 WL 8060571 (Colville C.A.), 14 CCAR 45, 7 CTCR 33
Colville Tribal Court of Appeals.
Melissa Williams, Appellant,
Colville Confederated Tribes, Appellee.
Case No. AP18-007 IA
Decided November 16, 2018
Trial Court Case No. CR-2018-41032
Attorneys and Law Firms
Mark Carroll, Spokesman, for Appellant.
Sabrina Desautel Fenton, Spokesman, for Appellee.
Before Chief Justice Anita Dupris, Justice Rebecca M. Baker, and Justice Theresa M. Pouley
On March 20, 2018, the Tribes, through a special prosecutor, Tim Rybka, filed a criminal complaint against Melissa D. Louis, aka Melissa Williams (Appellant), with five counts all relating to the use of a tribal credit card. These charges have not been litigated on their merits yet. On March 23, 2018, Chief Judge R. Steckel entered an order assigning the case to Judge Tom Tremaine.1
On April 30, 2018 at a scheduled Omnibus hearing the parties requested a continuance; the Court continued it to May 24, 2018. At the hearing the court noted the defendant (Appellant herein) had filed a Motion to Dismiss, to which the Tribes (Appellee herein) filed a Response Brief. The Court set a briefing schedule on the Motion to Dismiss.
On May 1, 2018 Appellant filed an Affidavit of Prejudice against Judge Tremaine, alleging a conflict in that Judge Tremaine was the presiding judge on both the civil and criminal cases involving Appellant. On May 8, 2018 Chief Judge Steckel’s Order dated May 3, 2018 was filed with the Court. Judge Steckel denied Appellant’s request to remove Judge Tremaine from the criminal case, finding insufficient reason stated to show potential prejudice or impartiality.2
On May 18, 2018 Appellant timely filed an Interlocutory Appeal on the denial of her motion to remove Judge Tremaine from her criminal case. In her Notice of Interlocutory Appeal Appellant also noted a Petition for Writ of Mandamus3, but did not specify what she actions she wanted us to direct the Trial Court to do. Based on the reasoning set out below we deny Appellant’s requests and dismiss this appeal.
A denial of a motion and affidavit to remove a judge from a case is subject to an Interlocutory Appeal by statute. CTC § 1-1-143. Appellant makes two arguments for the basis of her appeal: (1) Pro-Tem Tremaine’s appointment as judge in this case did not comport with the statutory requirements of appointment of pro-tems, and therefore, was not valid; and (2) Judge Tremaine also presides on the civil case brought by Appellant against Appellee Colville Tribes (Tribes), which evinces an appearance of unfairness and bias.
CTC § 1-1-140, Sessions of Court, sets the parameters of which trial court judges are to sit on cases before the Colville Tribal Court. In section (a), the Chief Judge is the primary judge to hear cases before the Court. He or she may call in an Associate Judge when needed. Section (b) states a pro-tem may be appointed by the Chief Judge in “the case of disability, absence or unavailability of both the Chief Judge and the associate judges.”
Section (c) requires the Court to give notice to all parties of the assignment of a pro-tem, and the parties have seven days to file an objection to the assigned pro-tem. The objection must state the reasons for the objection and a request that the case be reassigned to another judge. It should be noted these objection requirements are the same as used in an Affidavit of Prejudice.
It appears from the trial court record that the above-stated procedure was not followed: the parties did not receive specific notice that Judge Tremaine was to preside over the criminal case. However, at the Omnibus Hearing on April 30, 2018, the parties learned that Judge Tremaine was the presiding judge on the case. Following the April 30th hearing, Appellant filed her Affidavit to Recuse him, which was then denied by Chief Judge Steckel.
We find that adequate notice was provided to Appellant of Judge Tremaine’s appointment to fulfill the requirements of CTC § 1-1-140. Although it is a concern that the statute was not strictly applied herein, we find it harmless error, and encourage the Trial Court to be attentive to the procedures in this statute.
The second basis of the appeal, i.e. the appearance of unfairness and bias because Judge Tremaine presides over both the civil and criminal cases involving Appellant, requires a review of the Affidavit itself, as well as the reasoning of the order denying it.
We have had a minimum number of Interlocutory Appeals on requests to remove a judge from a case. In CTEC Gaming Commission v Mosqueda, 8 CCAR 61 (2006), we summed up some of the parameters of such a review: first, the standard of review is clearly erroneous; second, the reviewing judge of an affidavit against another judge requires a careful review of the affidavit and a particularized inquiry into the facts alleged in each case. Next, although additional fact-finding is not necessary in each case, it may be needed when the affidavit contains serious allegations and little facts. Finally, such fact-finding may be by a hearing or by sworn affidavits. Id. At p. 62.
In this case, there are no facts to find. The parties agree Judge Tremaine presides on both the civil and criminal cases of Appellant. Chief Judge Steckel, after some unnecessary verbiage, did state in his findings there was no conflict for Judge Tremaine to hear both cases, and finding that limited judicial resources necessitated his appointment, did not commit a clear error. Therefore, we affirm his Order Denying [The Recusal Motion].
Finally, we have been asked by Appellant to disallow the Special Prosecutor’s participation in this case in that he is not a member of the Colville Tribal Court Bar. This issue was not raised first at the trial level, nor in the Interlocutory Appeal. We will not consider it beyond the following: There is no provision in our statutory law for an appointment of a pro hoc vice member of the Colville Tribal Court Bar. As the statutory law stands now, the members of the Colville Tribal Court Bar must be admitted to practice by taking an exam and paying fees. The Colville Business Council (CBC) is the governing body to address membership and disciplinary issues.
Although the practice of pro hoc vice is common in the state and federal court systems, they are established and governed by their respective rules. We have no similar rules or laws to follow in such a procedure. It is not up to the Courts to develop these rules; it is up to our legislature, that is, the CBC. For these reasons we will not recognize his participation in the Appeal as we only recognize participants who are a member of the Colville Tribal Court Bar. This is an issue to be considered at the trial level upon remand.
We hold that the Trial Court’s Order herein is Affirmed and the matter remanded to the Trial Court for actions consistent with our decision.
--- Am. Tribal Law ----, 2018 WL 8060571, 14 CCAR 45, 7 CTCR 33
It is noted that there is no original Order Assigning Judge in the official court file; a copy was provided to this Court by a party.
We note that the tenor of Judge Steckel’s order is not written as respectfully as we expect from our judicial officers, yet it is not a basis for overturning his decision. We encourage our judicial officers to remember as tribal leaders we must always set the example of courtesy and respectfulness in our writings as well as when in Court.
“Writs of Mandamus are issued from courts to compel officials to perform acts that the law recognizes as an absolute duty, rather that acts that may be at the official’s discretion. Ministerial acts are those which are performed according to explicit directions by a subordinate official, allowing for judgment or discretion on the part of that individual.” Stout v. CFS, et. al, 9 CCAR 46 (2008). Appellant made no arguments relevant to this issue, and we consider it waived.