In Re the Welfare of C.G.

10 NICS App. 130, In Re the Welfare of C.G. (December 2012)

IN THE KALISPEL TRIBAL COURT OF APPEALS

KALISPEL INDIAN RESERVATION

USK, WASHINGTON

Kalispel Tribe of Indians, Appellant, Appellant,

I.N., Guardian,

and

Lisa Russell, Guardian ad litem.

No. 2005-4002-CV-IC (December 20, 2012)

SYLLABUS^*

Trial court judge, who had served as guardian ad litem for a minor prior to his judicial appointment, denied a motion to disqualify himself from presiding over guardianship proceedings concerning the minor, finding that there was no appearance of bias in doing so. Court of Appeals holds that trial court judge erred in conducting a factual inquiry into appearance of bias because applicable laws and judicial standards make disqualification in these circumstances mandatory and automatic.

Before:	Michelle Demmert, Chief Justice; Leona T. Colegrove, Justice; Gregory M. Silverman, Justice.
Appearances:	Lorraine Parlange, Tribal Attorney, for Appellant.

OPINION

This matter comes before the Court of Appeals pursuant to the Notice of Appeal filed by the Kalispel Tribe on September 20, 2012. The Tribe appeals the September 12, 2012 Order On Motion To Disqualify Judge issued by the Kalispel Tribal Court, the Honorable Tom Tremaine presiding, in which Judge Tremaine denied the Tribe’s motion that he disqualify himself from presiding further in this guardianship matter.

10 NICS App. 130, In Re the Welfare of C.G. (December 2012) p. 131

The Tribe’s motion to disqualify Judge Tremaine was based on the fact that Judge Tremaine had served for over two years¹ as a guardian ad litem (hereinafter also “GAL”) for the youth in these proceedings before Mr. Tremaine was appointed as Presiding Judge of the Kalispel Tribal Court.² This prior service as guardian ad litem, the Tribe claims, creates an appearance of bias that should disqualify Judge Tremaine from presiding in a case involving the youth. The Tribe acknowledged in its motion that the Kalispel Law and Order Code (KLOC) does not explicitly require disqualification of a judge when there is an appearance of bias³, but the Tribe argued that various other sources of law do so require. While in no way suggesting that Judge Tremaine had engaged in misconduct, the Tribe also argued that the manner in which Judge Tremaine had conducted the proceedings had in fact undermined the guardianship and created a perception amongst the parties, including the youth, of a lack of impartiality on the part of the Court. On appeal, the Tribe argues, among other things, that Judge Tremaine’s decision denying the Tribe’s Motion to Disqualify Judge is contrary to law and, therefore, subject to appeal and reversal under KLOC 1-12.021(7). We agree.

Chapter 3 of the Kalispel Law and Order Code, which governs civil actions, including the guardianship proceeding at issue here, provides that:

The Kalispel Tribal Court, in civil cases, shall apply the applicable laws, resolutions, ordinances, customs or codes of the Tribe, the laws of the United States and regulations of the Department of the Interior. As to any matters not

10 NICS App. 130, In Re the Welfare of C.G. (December 2012) p. 132

covered by the above, the Tribal Court shall apply, in the following order of priority, state statute, state common law and international law.

KLOC 3-11.01.

Resolution No. 2011-66 of the Kalispel Tribe Business Committee appointing Judge Tremaine as the Presiding Judge of the Kalispel Tribal Court states that Judge Tremaine is to perform all of his duties consistent with “appropriate judicial standards.” Under the combined operation of KLOC 3-11.01, we hold that “appropriate judicial standards” to be applied in this case include 28 U.S.C. § 455 (which governs the disqualification of federal court judges), the American Bar Association (ABA) Model Code of Judicial Conduct, and the Washington State Code of Judicial Conduct.⁴

As argued by the Tribe, 28 U.S.C. § 455(b)(2) requires a judge to disqualify himself where “in private practice he served as lawyer in the matter in controversy,” and 28 U.S.C. § 455(b)(3) requires a judge to disqualify himself where “he 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 case in controversy.” Here, based on pleadings he filed with the Court at the time, it appears that Judge Tremaine was employed as an attorney with the Northwest Justice Project while he served as guardian ad litem, and thus technically was neither in “private practice” nor in “governmental employment” at the time. Technicalities aside, it is clear he served as a lawyer in the matter in controversy, and was “employed” in the broadest sense of that word by the Court, a government entity, as counsel and advisor of the youth. Thus, whether acting as a lawyer in private practice or employed by the Tribal government while serving as guardian ad litem, 28 U.S.C. § 455(b) requires that Judge Tremaine disqualify himself from hearing this matter.

Disqualification is also required by Rule 2.11(A)(6)(a) of the Washington Code of Judicial Conduct (CJC) and Rule 2.11(A)(6)(a) of the American Bar Association Model Code of Judicial Conduct (hereinafter “ABA Model Code”).⁵ Using identical language, both rules state simply that a judge “shall disqualify himself or herself in any proceeding” in which the judge “served as a lawyer in the matter in controversy.”

10 NICS App. 130, In Re the Welfare of C.G. (December 2012) p. 133

In the order from which the Tribe appeals, Judge Tremaine reviews the facts of the present matter and finds that his presiding over this matter would not create an appearance of bias to a reasonable person.⁶ On the basis of this finding of fact, Judge Tremaine then denies the Motion to Disqualify Judge. Denying the Motion to Disqualify Judge on the basis of such a finding, however, is contrary to the applicable law. Under 28 U.S.C. §§ 455(b)(2) and (b)(3), CJC 2.11(A)(6)(a), and ABA Model Code Rule 2.11(A)(6)(a), no findings of fact regarding an appearance of bias are required: where a judge has previously served as a lawyer in the matter in controversy, disqualification is mandatory and automatic.

Similarly inapposite are Judge Tremaine’s ruminations on state and federal rules that require affidavits of prejudice to be filed before a judge exercises discretion in a case, and his concerns about the confidence of the community in a court that would allow a party to get rid of a judge simply by raising the appearance of bias or impartiality after receiving an adverse decision.⁷ This case does not involve an affidavit of prejudice, and the confidence of the community is simply not at issue where, as here, the applicable laws and judicial standards make disqualification mandatory and automatic. Indeed, identical comments in both the Washington Code of Judicial Conduct and the American Bar Association Model Code of Judicial Conduct explain that “[a] judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.” CJC Rule 2.11, Comment 2; ABA Model Code Rule 2.11, Comment 2.

Because we hold that 28 U.S.C. § 455(b)(2) and (3), CJC 2.11(A)(6)(a), and ABA Model Code Rule 2.11(A)(6)(a) are applicable under KLOC 3-11.01 and Resolution No. 2011-66, and further hold that Judge Tremaine’s order denying the Tribe’s Motion to Disqualify Judge are contrary to these laws, we need not address the Tribe’s other arguments on appeal. We would be remiss, however, if we did not acknowledge and address a conflict among these laws that could affect the precedential value of our decision here.⁸

The ABA Model Code of Judicial Conduct provides that the judge need not withdraw under Rule 2.11(A)(6)(a) if the judge discloses on the record the basis for disqualification and the parties agree, without participation by the judge or court personnel, that the judge should not be disqualified. See ABA Model Code Rule 2.11(C). The Washington Code of Judicial Conduct

10 NICS App. 130, In Re the Welfare of C.G. (December 2012) p. 134

does not follow this rule. While the Washington Code of Judicial Conduct allows waiver of other grounds for disqualification, the Washington Code does not provide for waiver of disqualification pursuant to Rule 2.11(A)(6)(a), even if the parties receive notice and wish to do so. See CJC Rule 2.11(C). The federal rule goes even further, and expressly prohibits a judge from accepting a waiver of any ground for disqualification enumerated in 28 U.S.C. § 455(b). 28 U.S.C. § 455(e). Since none of the parties have agreed to waive disqualification in the case of C.G., this divergence in the standards for judicial conduct does not present an issue in this case. However, given the lack of detailed guidance in KLOC 1.3.07, and given the lack of an express statement in Resolution 2011-66 as to which “judicial standards” are “appropriate” or how to resolve differences among multiple appropriate judicial standards, it remains an open question as to whether parties in a Kalispel Tribal Court proceeding can agree to waive disqualification where a judge has previously served as a lawyer in the matter in controversy.⁹ Because disqualification of judges on these and other grounds tends to be a recurring issue in all courts, and particularly ones serving small communities such as the Kalispel Tribal Court, this Court encourages the Kalispel Business Committee to provide additional guidance on this issue, whether by amending KLOC 1-3.07, expressly adopting by reference one of the Codes of Judicial Conduct discussed in this opinion, or developing its own code of judicial conduct.

Based on the foregoing, we hereby reverse the September 12, 2012 Order on Motion to Disqualify Judge of the Kalispel Tribal Court and remand this matter to the Court for entry of an order disqualifying Judge Tremaine and assigning this case to an alternate judge eligible to hear cases pursuant to KLOC Chapter 1, Section 1-3.

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

The Tribe asserted in its brief and at oral argument that Judge Tremaine had served as guardian ad litem for three years, based on his being appointed as guardian ad litem on November 8, 2006. However, the Order on Motion to Disqualify Judge, the record, and the Tribe’s own exhibit indicate that Judge Tremaine was appointed as GAL for C.G. on July 3, 2007. The precise dates and duration of Judge Tremaine’s appointment as GAL are not material to our decision in this matter.

Although KLOC 1-3.01 states “The Kalispel Tribal Court shall consist of a Chief Judge whose duties shall be regular and one Associate Judge . . . .” Resolution No. 2011-66 of the Kalispel Tribe Business Committee appointed Judge Tremaine as the “Presiding Judge.” This Court notes that Milton Nomee is the Chief Judge of the Kalispel Tribal Court, and therefore presumes that the intent of the Business Committee is that the “Presiding Judge” fills the role of the Associate Judge.

KLOC 1-3.07, “Disqualification of Judge,” provides only that “No Judge shall be qualified to act as such in any action or proceeding wherein he is a party or has any direct interest or wherein any relative by marriage or blood in the first degree is a party.” At oral argument and in its brief, the Tribe asserted that the practice in the Kalispel Tribal Court is to grant a guardian ad litem “party status” (although not by code, regulation or court rule), and that KLOC 1-3.07 should be interpreted broadly to require disqualification where a judge is or has been a party to the proceeding. We find no support for the proposition that a guardian ad litem can be granted party status. KLOC 7.04.01(10) defines a guardian ad litem as “an adult appointed by the Court to represent the best interests of a youth in any legal proceeding to which he or she may be a party.” See also Black’s Law Dictionary, Sixth Edition (“A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent an infant, ward or unborn person in that particular litigation, and the status of guardian ad litem exists only in that specific litigation in which the appointment occurs.”) Whether a GAL is an attorney or a lay advocate, a GAL represents a party, but enjoys no rights and has no interest independent of the party represented.

Although the Tribe did not raise or rely on the Washington Code of Judicial Conduct, the Tribe did argue the ABA Model Code of Judicial Conduct is applicable, and the relevant Washington Rule is identical to the ABA rule as applied here.

Although the Tribe did not refer specifically to this particular rule, the Tribe did refer generally to the ABA Model Code in its brief. Because we hold that the ABA Model Code and the Washington Code of Judicial Conduct are directly applicable to Judge Tremaine pursuant to Resolution 2011-66, we need not address the Tribe’s argument that the ABA Model Rules are generally applicable to judges pursuant to the Kalispel Tribal Court spokesperson’s oath.

See, e.g., Order on Motion to Disqualify Judge, page 2 (“the issue is . . . whether a reasonable person, based on the facts as they exist, would question the Court’s impartiality”), page 4 (“It is my judgment that these facts would not lead a reasonable person to question the impartiality of a judge . . . .”), page 6 (“These are the facts as they exist. It is impossible for me to conceive of a reasonable person armed with these facts concluding that such a well establish [sic] practice would raise a question about the impartiality of a judge . . . .”), page 9 (“a reasonable person would expect the judge to act . . . .”).

As noted by the Tribe, no decision adverse to the Tribe has been issued in this case, and the Tribe’s interest is the best interest of the youth.

This Court notes that Judge Tremaine has served as a guardian ad litem for other Kalispel youth (e.g., C.G.’s siblings), and that the issue of disqualification may arise in future cases heard by Judge Tremaine and other Kalispel Tribal Court judges.

We note the rules diverge in other regards. For example, the CJC and the ABA Model Code recognize that the “rule of necessity may override the rule of disqualification” in limited circumstances. See CJC Rule 2.11, Comment 3; ABA Model Code, Rule 2.11, Comment 3. This is a practical consideration for small courts. 28 U.S.C. § 455 does not recognize a “rule of necessity,” presumably because Congress concluded that the federal bench is large enough that an alternate judge or magistrate will always be available, even on short notice.