4 NICS App. 193, PRATT v. HOOPA VALLEY TRIBAL POLICE (April 1997)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Daniel E. Pratt, Appellant
v.
Hoopa Valley Tribal Police, Respondent
No. C-96-048 (April 30, 1997)
SUMMARY
Appeal of trial judge’s denial of appellant’s motion to disqualify trial court judge. Appellant alleges that the trial judge’s prior employment as Tribal police chief, his personal and professional relationship with the current police chief, and his status as sole drafter of the rules and regulations which he might be called upon to interpret, create a potential for bias or the appearance of prejudice, requiring recusal. Finding no evidence sufficient to show either actual bias or the appearance of impartiality and no abuse of discretion, we affirm.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Douglas W. Hutchinson, Justice; Robert J. Miller, Justice.
Appearances: Daniel Pratt, appellant; P. Timothy Murphy, spokesperson for appellant; Respondent Hoopa Valley Tribal Police appeared through its attorney, Bradley G. Bledsoe Downes.
This matter came before the Hoopa Valley Tribal Court of Appeals pursuant to Daniel E. Pratt’s Notice of Appeal filed on November 22, 1996 and received in this Court on January 14, 1997. Mr. Pratt appeals from the order of the trial court, issued orally on November 22, 1996 and in written form on November 27, 1996, denying his motion to disqualify Judge Michael S. Ross from hearing his case.
Oral argument in this matter was heard on February 24, 1997 via telephone conference call. Appellant Daniel Pratt and his spokesperson, P. Timothy Murphy, were present during the teleconference. Hoopa Tribal Attorney, Bradley G. Bledsoe Downes, was present on behalf of Respondent Hoopa Valley Tribal Police.
4 NICS App. 193, PRATT v. HOOPA VALLEY TRIBAL POLICE (April 1997) p. 194
I. BACKGROUND
This matter originated as an appeal filed with the TERO Commission by Daniel Pratt challenging the termination of his employment by the Department of Public Safety. At the hearing, the TERO Commission specifically addressed the issues of (1) whether Mr. Pratt had violated certain rules and regulations of the Department of Public Safety; and (2) whether termination from employment was the appropriate remedy.
The TERO Commission found that Mr. Pratt had violated some, but not all, of the rules under which he had been charged. The Commission, finding that the penalty imposed was too harsh, reinstated Mr. Pratt. The Hoopa Valley Tribal Police appealed the TERO decision on the grounds that it was arbitrary, capricious, and not in accordance with the law. This appeal has not yet proceeded to a hearing on the merits because in October of 1996, Mr. Pratt filed a Motion for Order Disqualifying Judge Mike Ross from adjudicating the issues. Mr. Pratt based his motion on allegations of prejudice due to Judge Ross’s prior position as the tribal chief of police as well as his personal and professional relationship with Leonard E. Masten, the Director of the Hoopa Valley Department of Public Safety, who had terminated Mr. Pratt from employment with the tribal police department.
A hearing on Mr. Pratt’s motion took place on November 22, 1996. On that day, the trial court denied Mr. Pratt’s motion in an oral order which was reduced to writing and entered on November 27, 1996.1 It is from this denial that Mr. Pratt appeals.
II. JURISDICTION
This Court has personal jurisdiction over Appellant Daniel Pratt because he is an employee of the Hoopa Valley Tribal Police Department. The act which is the subject of this appeal occurred within the exterior boundaries of the Hoopa Valley Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Title I, §§ 1.1.04, 1.2.10, and 1.3.04 of the Hoopa Valley Tribal Code.
4 NICS App. 193, PRATT v. HOOPA VALLEY TRIBAL POLICE (April 1997) p. 195
III. STANDARD OF REVIEW
The standard of review over trial court decisions regarding recusal of a judge is for an abuse of discretion. Thomassen v. United States, 835 F.2d 727, 732 (9th Cir. 1987); DeCoteau v. Ives, 2 NICS App. 170, 172, 174 (Port Gamble S’Klallam 1992) (trial court evidentiary rulings and final judgments are reviewed for manifest abuse of discretion).
IV. DISCUSSION
Appellant urges this Court to reverse the trial court order and to order the removal of Judge Ross from hearing or deciding this matter. Section 1.3.04 outlines the procedure for disqualification of a judge:
A defendant, or other party, to any proceedings may accomplish a change of assignment of his/her case from one judge to another upon filing an affidavit of prejudice with the Court, giving satisfactory reason for such change. . . .The initial judge shall pass on the adequacy of the affidavit of prejudice and enter the appropriate order, either hearing the case or reassigning it to another judge. Such an order may be appealed immediately under the appellate procedures set out in this Code, and all further actions in such a case will be stayed pending the outcome of that appeal. . . . In no event shall the trial judge allow any action as set out in this section to influence his/her impartiality in any case or to any person.
Along with his Motion to Disqualify Judge Ross, Mr. Pratt submitted a declaration of prejudice, wherein he stated his belief that he could not obtain a fair and impartial hearing before Judge Ross for the following reasons: (1) Judge Ross once served as the Tribal Chief of Police and, therefore, would be biased; (2) Judge Ross has a close personal friendship with the current Police Chief, Leonard Masten; (3) Judge Ross and Chief Masten traveled together as part of their work on a statewide Indian Drug Task Force; and (4) Mr. Pratt’s case involves the interpretation of the Rules and Regulations Manual of the Hoopa Valley Department of Public Safety and Emergency Services, which was authored by Judge Ross in 1985.
The trial court, in denying the motion for removal, found that Mr. Pratt had failed to show that Judge Ross’ personal or professional relationship with Mr. Masten, his status as former police chief, or his involvement in authoring the regulations in question established prejudice or bias.
Title I, § 1.2.9 of the Hoopa Valley Tribal Code sets out the standard for removal of a judge:
Any judge of the Tribal Court or Appellate Court shall be disqualified to act as such in any case in which he or she has any direct interest, and shall not take part in the deliberation or determination of any matter . . . where for any . . . reason the judge cannot be impartial [or] where the judge finds that a reasonable person would believe that the Judge could not be impartial. [Emphasis added].
4 NICS App. 193, PRATT v. HOOPA VALLEY TRIBAL POLICE (April 1997) p. 196
Recently, this Court in Hoopa Valley Tribal Council v. Risling, 4 NICS App. 66 (Hoopa 1996) established the standard to be used when the impartiality of a judge or arbiter is questioned:
Any judge or arbiter shall disqualify himself or herself in any proceeding:
(1) in which his or her impartiality might reasonably be questioned; or
(2) where he or she has personal bias or prejudice concerning a party; or
(3) where he or she has personal knowledge of disputed evidentiary facts concerning the proceeding; or
(4) where he or she has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular controversy.
Risling, 4 NICS App. at 7-8.
In Risling, the parties sought to recuse two TERO Commissioners from deciding a grievance before the Commission because both Commissioners were former Tribal Council members who, during their tenure as Council members, might have learned of certain facts regarding the issues they were asked to rule upon as TERO Commissioners. Relying on evidence showing that both Commissioners may have been privy to confidential information regarding evidentiary facts at issue before the TERO Commission, this Court found that the parties had established sufficient facts upon which the appearance of impartiality might reasonably be questioned, requiring recusal of the two Commissioners.
The facts in the case now before this Court may be distinguished from the Risling facts. Mr. Pratt seeks to remove Judge Ross because of the potential for bias or the appearance of prejudice stemming from Judge Ross’s prior employment as Tribal Police chief, his personal and professional relationship with Chief Masten, and his status as sole drafter of the rules and regulations which the trial court eventually might be called upon to interpret. Appellant, however, fails to allege or sufficiently establish that Judge Ross, in his prior work or relationships, may have obtained knowledge of evidentiary facts at issue.
The standard we apply is the reasonable person standard; i.e., whether a reasonable person would believe that Judge Ross cannot be impartial because of his previous work or his personal and professional relationship with Chief Masten. We address Mr. Pratt’s allegations of bias individually.
A. Former Police Chief Ross
Mr. Pratt admits that he did not work for the Hoopa Valley Tribal Police during the time that Judge Ross served as its Chief. The fact that Judge Ross once served as police chief for the very same organization from which Mr. Pratt’s employment was severed does not raise a specter of bias. Mr. Pratt’s employment with and termination from the police department occurred after Judge Ross
4 NICS App. 193, PRATT v. HOOPA VALLEY TRIBAL POLICE (April 1997) p. 197
had left his position as police chief. Therefore, during Judge Ross’s tenure as police chief, he could not have obtained any knowledge of the facts in Mr. Pratt’s current appeal, nor could he have expressed any opinions concerning the merits of a case which did not at the time exist. Judge Ross’s prior employment with the police department does not create a situation in which his impartiality might reasonable be questioned.
B. Judge Ross’s personal friendship with current Police Chief Masten
Mr. Pratt believes that he cannot receive a fair hearing before Judge Ross because of the Judge’s personal friendship with Police Chief Masten, who terminated Appellant from employment. Mr. Pratt has not established that Judge Ross has obtained any knowledge regarding evidentiary facts about this case by virtue of his friendship with Chief Masten. The personal relationship between Judge Ross and Chief Masten (who, this Court notes, is not a party to this case) does not on its face establish an appearance of impropriety or impartiality. Judges are often called upon to separate personal opinions from their decisions. Requiring a judge to recuse himself from hearing a case based solely on the fact of his friendship with a non-party witness does not serve the ends of judicial efficiency or economy.
C. Judge Ross’s former professional relationship with Police Chief Masten
Mr. Pratt has produced no evidence to this Court that any actual or apparent bias results from Judge Ross’s former or current professional relationship with Chief Masten. The fact that Judge Ross and Chief Masten worked and traveled together on a matter unrelated to Mr. Pratt’s case has no demonstrated bearing on Judge Ross’s ability to hear and decide this matter impartially.
D. Judge Ross’s role as sole drafter of the Rules and Regulations Manual
It is undisputed that in 1985 Judge Ross authored the Rules and Regulations Manual in use by the Department of Public Safety. It also is undisputed that the underlying action in this case may hinge upon the interpretation, by the trial court, of particular rules and regulations which Mr. Pratt allegedly violated.
In and of itself, however, the fact that Judge Ross drafted rules which, in the future, he might interpret does not rise to the level of real or apparent bias requiring recusal. Tribal, state, and federal judges come from diverse backgrounds and bring to the bench a plethora of experience and skills. Some are former legislators. It is not uncommon for judges who have had substantial roles in the legislative process to be called upon to interpret the resulting laws; they are not required to recuse themselves from hearing cases relating to that legislation once they become judges.
4 NICS App. 193, PRATT v. HOOPA VALLEY TRIBAL POLICE (April 1997) p. 198
V. CONCLUSION
Appellant’s objection to the trial court’s reference to the Rule of Necessity is not well taken. The Hoopa Valley Tribe, like many Indian tribes, is not only small but isolated. It is improbable, if not impossible, to find a judge who will have absolutely no knowledge regarding every case and every individual that comes before him. It is an equally onerous burden, both economically and logistically, to require the Tribe to rely heavily on pro tem judges.
As the trial court discussed, Hoopa is a small community. Many of its members have lived in the community for their entire lives. In small communities such as the Hoopa Valley Indian Tribe, it is impractical to require a judge to recuse himself from every case in which he has some knowledge of or relationship to parties or witnesses appearing before the court. In such communities, a reasonable person would believe that a judge could know and have personal or professional relationships with individuals in the community who may come before him in a judicial proceedings and still not have that knowledge affect his impartiality.
This Court agrees with the trial court that Mr. Pratt has failed to show that Judge Ross cannot be impartial or that a reasonable person would believe that Judge Ross cannot be impartial. The trial court, in its order, painstakingly addressed each of Mr. Pratt’s concerns regarding potential bias and specifically found that Mr. Pratt had failed to provide sufficient evidence of either actual bias or the appearance of partiality. We find the trial court did not abuse its discretion in denying Mr. Pratt’s motion.
VI. ORDER
Based on the foregoing, it is hereby ordered that the Trial Court Order denying Mr. Pratt’s Motion to Disqualify Judge Ross is affirmed.
The trial court hearing on this matter took place on November 22, 1996. On that date, the trial court orally issued its order denying Mr. Pratt’s motion to disqualify Judge Ross. Mr. Pratt immediately filed his Notice of Appeal of the oral order on November 22, 1996. Five days later, on November 27, 1996, the trial court issued its order in written form. Mr. Pratt did not file a notice of appeal after entry of the November 27, 1996 order.
This Court recognizes that, in all probability, Mr. Pratt filed his notice of appeal immediately pursuant to the trial court’s oral ruling in order to ensure timely filing. Title I, § 1.7.03 provides that an appellant’s notice of appeal should be filed “[w]ithin ten days from the entry of judgement.” [Emphasis added]. In light of the language of § 1.7.03, Appellant should have refiled his notice of appeal after entry of the written judgment or order. We do not decide this case based on this issue. We address the point for the purpose of procedural clarification.