5 NICS App. 101, FELTMAN v. MUCKLESHOOT (February 1999)
IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
Jerome Feltman, Appellant/Plaintiff,
v.
Muckleshoot Tribe of Indians; and Muckleshoot Indian Casino, a subsidiary of the Muckleshoot Tribe of Indians, Appellees/Defendants.
No. MUC-CIV-1/98-014 (February 27, 1999)
SUMMARY
Trial court disqualified Appellant’s attorney from representing him in the Muckleshoot Tribal Court on the basis that Appellant’s attorney is a contract judge for the Northwest Intertribal Court System (NICS), which provides pro tem trial and appellate court judges for its member tribes, including the Muckleshoot Indian Tribe. This case of first impression has the potential result of leaving Appellant without his counsel of choice; therefore, the trial court ruled, and this Court agrees, that the trial court’s ruling on this issue is directly appealable to this appellate court prior to further trial court action on the merits. The Court of Appeals declines to hold all NICS practicing attorneys to a higher and more onerous standard than any other practicing attorneys. The Court holds that disclosure is a better remedy than outright disqualification. Affirmed in part, reversed in part and remanded.
FULL TEXT
Before: Fred Gabourie, Sr., Chief Justice; Thomas Keefe, Jr., Justice; and Lorintha Warwick, Justice.
Appearances: Samuel J. Stiltner, Law Offices of Samuel J. Stiltner; counsel for Appellant; Ruth A. Kennedy and Lisa Hanna, Garvey Schubert & Barer and Karen Allston, counsel for Appellees.1
I. FACTS OF THE CASE
Plaintiff Jerome Feltman brought action against the Defendants on January 27, 1998, alleging certain causes of action arising out of his employment at the Tribe’s casino. The Plaintiff’s attorney,
5 NICS App. 101, FELTMAN v. MUCKLESHOOT (February 1999) p. 102
Mr. Charles Hostnik, disclosed to Defendants’ attorney that he has, for a number of years, served as a judge for the Northwest Intertribal Court System (NICS), an entity that provides appellate services under contract and upon request to the Muckleshoot Tribal Court.
Defendants moved to have Plaintiff’s counsel disqualified from further participation in the case, alleging that Mr. Hostnik’s employment relationship with NICS provides him with an unfair advantage in this proceeding over Defendants and their counsel and, further, that the appearance of impropriety hovers over Mr. Hostnik’s dual relationship as an advocate within this Court’s trial system, and as an appellate court judge for the NICS. The trial court judge agreed, stating: “There is an inherent conflict of interest in Mr. Hostnik serving in the dual role of an advocate at the trial level in the NICS and as an appellate justice in the same system.”
The trial court further found that “the mere appearance of unfairness from the perspective of the litigants” (Order Granting Motion to Disqualify, p. 3) and the fact that “Mr. Hostnik’s regular participation as an NICS justice would inevitably lead to the conclusion in some litigants’ minds that the clients he represents have an unfair advantage when having their cases heard in the NICS system” (Order, p. 4), warranted the exclusion of Plaintiff’s attorney from this case. In the trial court’s view, “[f]or the tribal court system to gain the authority and respect of the community, it is essential that its reputation as an impartial and independent institution remain unblemished.” (Order, p. 3).
The trial court found that its decision disqualifying Plaintiff’s attorney was not a final judgment within the meaning of the Muckleshoot Rules of Appellate Procedure. Nevertheless, because this decision eliminating the Plaintiff’s counsel of choice raised a matter of first impression for the Muckleshoot tribal court, the ruling was denominated as directly appealable by Plaintiff prior to further action on the merits.
Plaintiff appeals from the trial court’s decision disqualifying Mr. Hostnik from representing him in the Muckleshoot Tribal Court.
We uphold the trial court’s decision in part, and reverse in part.
II. ISSUES ON APPEAL
1) Did the trial court properly denominate this matter as an issue of first impression, directly appealable in lieu of being a final judgment?
2) Did the trial court properly find an actual or apparent conflict of interest inherent in the participation of an NICS appellate justice acting as a trial advocate for an individual in an NICS participating tribal court legal proceeding?
III. DECISION
The trial court judge accurately observed that this matter of first impression raises important
5 NICS App. 101, FELTMAN v. MUCKLESHOOT (February 1999) p. 103
policy implications for the entire Northwest Intertribal Court System, and went so far as to seek policy guidance from the NICS Board regarding her decision. Recognizing that the decision would leave Plaintiff denied of his choice of counsel, while the Appellee would remain represented by attorneys from one of the most prestigious law firms in the city of Seattle, indeed, in the entire State of Washington, we find that the trial court’s decision allowing its decision to be directly appealable prior to trial was proper. Withholding decision on that order until the case had been litigated would have, in effect, upheld the trial court decision disqualifying Plaintiff Feltman’s counsel. By forcing the Plaintiff to proceed to trial with a “second choice” as counsel would render any subsequent discussion of Mr. Hostnik’s trial role a moot point.
Federal law may serve as an informative tool of guidance. 28 U.S.C. §1292. There are instances where federal courts may not have set aside the final order rule, but for practical purposes these are in no way binding upon this Court.
For many years, NICS has been able to provide high quality judicial services to its member tribes precisely because attorneys in the private practice of law have been generous with their time and talent on an hourly basis. Mr. Hostnik is one of a number of such practitioners, most of whom provide their services to NICS at a rate far below their usual hourly rate charged for providing legal services in a non-tribal setting.
The practical implication of upholding the trial court’s disqualification of Mr. Hostnik would be to disqualify each and every other attorney who provides occasional, part-time judicial services to NICS from appearing as an advocate in any tribal court system that contracts with NICS for trial or appellate services. (Washington State Bar Association Ethics Opinion 160). We find that such an extreme remedy for a perceived appearance of a conflict of interest to be both unwarranted and unwise.
The Muckleshoot Indian Tribe, in the exercise of its tribal sovereignty, is certainly free to take whatever steps are necessary to see that any attorney who participates as a trial advocate in its court is not selected to serve as a trial court judge at Muckleshoot, or empaneled as an appellate court justice in any matter coming out of that court system. This course of action would be, in our view, the more prudent means of resolving any perception that might arise “in some litigants’ minds” regarding the fairness of tribal court proceedings.
The impractical and excessive nature of the remedy fashioned in the court below can best be viewed through analogy to a situation that could easily arise in the state court system. Would an attorney from the firm of Garvey, Schubert & Barer who took a seat on the trial or appellate court bench of the state have an inherent or perceived conflict in later hearing a case in which that firm represented one of the litigants? We think not. To hold NICS to a higher and more onerous standard for the practicing attorneys who serve as part-time judges at NICS would be, in our view, both unjust and unwise. The proper course of conduct in each case is disclosure, not disqualification.
5 NICS App. 101, FELTMAN v. MUCKLESHOOT (February 1999) p. 104
The party whose interests are directly damaged by the decision below is the Plaintiff/Appellant, Mr. Feltman. In seeking out counsel with an interest and expertise in tribal court matter, Mr. Feltman helps to assure the broader community interest in the quality of tribal court proceedings is protected and vindicated. The Appellant has a right to be represented by counsel of his choice. Muckleshoot Tribal Code of Laws, §4.01.10. In choosing to be represented by the well- respected firm of Garvey, Schubert & Barer, the tribe and its business enterprise do the same. Having both parties to this dispute well-represented in a vigorous exchange of legal views and fact development at trial is, in our view, the best means of assuring the Muckleshoot Tribal Court’s “reputation as an impartial and independent institution remain[s] unblemished.” We express full confidence in the trial court judges’s ability to develop a record of such a proceeding.
With respect to the Appellee’s concern that a previous decision authored by Mr. Hostnik in his capacity as a NICS judge in Hoopa Valley Indian Housing Authority v. Gerstner could be a precedent in this case at hand, we find no conflict. The various judges who serve on appellate panels for NICS are an intellectually vigorous and independent-minded group of individuals. To paraphrase a long-forgotten major league umpire, “We call ‘em as we see ‘em.” And despite Mr. Hostnik’s previously admitted discomfort at citing himself, as judicial opinion writer, as authority for a legal proposition he advances as counsel for a litigant, no member of this panel would have the slightest hesitation to rule against Attorney Hostnik’s attempt to cite Judge Hostnik if the facts of his prior decision fail to justify the application of that decision to a subsequent case.
The Order Granting Motion to Disqualify rendered below is upheld in part relative to the trial court’s decision to allow the underlying issue to be directly appealable. The Order is reversed in part, as it relates to the disqualification of Mr. Hostnik to act as counsel for the Plaintiff. The matter is remanded to the trial court for further proceedings consistent with this Opinion.
Pursuant to Muckleshoot Tribal Code §9.03.01(h), this appeal was decided based on the record of the court below and without oral argument.