6 NICS App. 162, MOSIER v. SQUAXIN ISLAND (September 2004)

IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS

SQUAXIN ISLAND INDIAN RESERVATION

SHELTON, WASHINGTON

Ramona Mosier, Appellant,

v.

Squaxin Island Tribe, Respondent.

No. SQI-CI-03-07-178 (September 7, 2004)

SYLLABUS^*

Trial court entered order accepting plea of guilt by a criminal defendant and subsequently denied a motion to stay the judgment, withdraw the plea and disqualify the presiding judge, who also served the Tribe as a criminal prosecutor on a contract basis. Court of Appeals holds that (1) it is impermissible for a trial judge in a criminal matter to also be employed as a criminal prosecutor within the same jurisdiction and (2) the circumstances surrounding the taking of the guilty plea were manifestly unfair and demonstrate that the defendant did not understand the consequences of the plea or knowingly and voluntarily make her plea. Trial court order reversed with direction to grant defendant’s motion to withdraw her plea and conduct a trial on the merits.

Before:            Emma Dulik, Chief Justice; Lisa E. Brodoff, Justice; Elizabeth Fry, Justice.

OPINION

Brodoff, J.:

SUMMARY

The defendant pled guilty at arraignment to two charges of delivery of controlled substance, at the police station, with two officers and the police chief present, before the prosecutor/judge pro tempore, without counsel, and without written or recorded proof of being informed of her rights. The sentence included an indefinite period of exclusion from the reservation. The Court of Appeals sets aside the plea and remands for trial.

6 NICS App. 162, MOSIER v. SQUAXIN ISLAND (September 2004) p. 163

I. BACKGROUND

Appellant Ramona Mosier pled guilty to two counts of sale/delivery of a controlled substance on July 29, 2003. The court order accepting the guilty plea was signed by Judge Thomas Meyer. Judge Meyer also contracts with the Squaxin Island tribe as a criminal prosecutor.

The circumstances surrounding the taking of the plea by Ms. Mosier are undisputed. Ms. Mosier was interrogated by the tribal police in the evening hours, informed of the charges against her, arraigned, had her bail set, pled guilty, and was sentenced all at the same time and in the same meeting with police (July 29, 2003). Although she may have been entitled to a representative at the tribe’s expense, she did not have and may not have been told of her ability to obtain representation prior to agreeing to a guilty plea. No one else was with Ms. Mosier except two police officers and the police chief when she agreed to the plea. The guilty plea itself was taken in the police station, not in open court. Although Judge Meyer states that he recorded the taking of the plea, the Tribe has been unable to produce the tape, despite being asked by this court to do so. As a result, we have no record to determine what was said to Ms. Mosier at the time of the taking of the plea, and what her understanding was of the consequences of agreeing to plead guilty to these charges. In fact, one of the consequences that Ms. Mosier seems to have been unaware of was that she was agreeing to her own exclusion from residing on the Squaxin Island Reservation for her lifetime, and was directed to leave the reservation within five days of the signing of the order by Judge Meyer. Ms. Mosier was 65 years old, owned a home on the reservation that she was two years from paying off, had a new job with the tribe as Tribal historian, and had never before in her life been charged with a crime.

Sometime after signing the guilty plea on July 29, 2003, Ms. Mosier obtained counsel. Her attorney, Richard Woodrow, filed a motion for stay of order of exclusion and conviction, and asked that Judge Meyer disqualify himself due to his dual role as prosecutor and judge for the tribe on August 21, 2003. A motion to withdraw the guilty plea was later filed on August 26, 2003. On September 12, 2003 Judge Meyer issued a Memorandum Decision and order denying Ms. Mosier’s motions. Thereafter, on September 18, 2003, Ms. Mosier filed with this court an appeal of Judge Meyer’s decision to deny the stay, not to disqualify himself, and not to allow the withdrawal of the guilty plea. On April 27, 2004, this court found that the appeal was timely filed and ordered a stay of the exclusion order pending our decision on the merits of the appeal. Briefs were filed by both parties, and oral arguments were heard on July 19, 2004.

II. FACTUAL FINDINGS

The following facts are essentially undisputed:

6 NICS App. 162, MOSIER v. SQUAXIN ISLAND (September 2004) p. 164

6 NICS App. 162, MOSIER v. SQUAXIN ISLAND (September 2004) p. 165

III. ISSUES ON APPEAL

1.      Whether the appellant should be allowed to withdraw her guilty plea to two counts of delivery of a controlled substance when the judge accepting the plea is also employed by the Squaxin Island Tribe as a prosecutor?

2.     Whether the appellant should be allowed to withdraw her guilty plea when circumstances surrounding the taking of the plea, including that the plea was taken without the benefit of counsel, not in open court but in the police station and without any recording of the proceedings, and at the same time as the arraignment and bail setting, make it unclear whether appellant understood the consequences of the guilty plea?

IV. LEGAL ANALYSIS

We find for the Appellant, granting her request to withdraw her guilty plea and remanding this matter back to the tribal court to set for trial. We make this order based on two separate and independent grounds: First, that it is impermissible for a trial judge in a criminal matter to also be employed as a criminal prosecutor for the tribe; Second, that the circumstances surrounding the taking of the guilty plea were manifestly unfair, and taken together, demonstrate that Ms. Mosier did not knowingly enter into the plea.

It is well and long-recognized that the roles of a judge and a prosecutor are fundamentally different and separate from one another. The executive, legislative, and judicial branches of government are therefore independent and segregated from one another, to ensure fairness to citizens and unbiased decision making in each branch. The Squaxin Island Tribal Council has recognized these tenets by encoding them in the “Rules for Conduct of Judges,” Chapter 4.16. These rules apply to all judges of the Squaxin Island Tribal Court, including temporary judges. Section 4.16.010.

While the entire chapter centers on the requirement that tribal court judges be free from conflicts of interest or even the appearance of unfairness by, for example, “avoiding informal contacts with tribal police,” see sections 4.16.020, 030, and 040, there is a code section on point with regard to the specifics of this case. Section 4.16.050A, entitled “Independence”, states, “A tribal judge shall not engage in outside activity which would be inconsistent with the Tribal Court’s status as an independent government branch. In particular, the judge shall not participate in legislative or administrative activities of the tribal government.” (Emphasis

6 NICS App. 162, MOSIER v. SQUAXIN ISLAND (September 2004) p. 166

added.) By being employed by the Tribe as both a judge in the judicial branch of government and a criminal prosecutor in the administrative or executive branch, Judge Meyer and the Tribe have violated this section²

This holding is not meant as a personal critique of Judge Meyer. He states in his Memorandum Decision that he does not have actual bias based on his dual role, and that in fact, “If I have any bias, … it would be toward the rights of criminal defendants.” Memorandum Decision p. 2. We have no reason to believe otherwise. But the code section is rightly mandatory. It strictly forbids a judicial officer from participating in the administrative branch of government. This is because even the appearance of bias implicit in a tribal judge also employed by the tribe as a prosecutor results in tribal members lacking confidence in the court’s purposes in “safeguarding individual rights.” See Chapter 4.04.020, Purpose of Tribal Court.

Therefore, we hold that the decisions made in this case by Judge Meyer to both accept the guilty plea and then to refuse to recuse himself from hearing the motion to withdraw the plea are overturned, because they were made in conflict with the independence requirements of Chapter 4.16.050. Further, it is against all concepts of fairness and due process to have a judge in a criminal matter also be employed as a criminal prosecutor in the same jurisdiction.

Squaxin Island Law is specific in its requirements that defendants charged with crimes be given notice of a number of rights by the judge at arraignment and when entering a plea. Chapter 4.28.120. These include: the right to remain silent; the right to be tried by a jury of six people; the right to be represented by a lawyer or other spokesperson at defendant’s expense; the right to have the rest of the arraignment postponed if defendant wants to talk with a representative first; the right to have the Court order the witnesses against the defendant to appear and testify at trial; the right to question all witnesses against defendant; the right to call witnesses on defendant’s behalf; and the right to a speedy, public trial. Chapter 4.28.120C. When entering a guilty plea, “the judge shall make sure that the plea is made voluntarily and that the defendant understands what will happen as a result of the guilty plea.” Chapter 4.28.130B.

Here, because the guilty plea was not taken in open court and on the record, there is no evidence for this court to consider in determining whether the judge fully informed Ms. Mosier of her rights and whether she understood the consequences of the plea. It is of additional significance that the defendant was not given notice that she could be subjected to Exclusion, which normally requires a separate hearing with due process guarantees. See Chapter 2.16.020.

6 NICS App. 162, MOSIER v. SQUAXIN ISLAND (September 2004) p. 167

Given the simultaneous timing of the charge, arrest, arraignment, setting of bail, taking of the guilty plea, sentencing and exclusion, together with the fact that Ms. Mosier had never been arrested before, had no representation, and ended up agreeing to be permanently excluded from the reservation where she makes her home, we are convinced that Ms. Mosier did not knowingly and voluntarily make her guilty plea. It is noted that Ms. Mosier had been a tribal court judge for a short time, but did not have a law degree or advanced legal training and handled only fishing cases.

Chapter 4.28.140 allows a defendant to withdraw a guilty plea at any time up to the sentencing if it appears that an injustice will be done. Ms. Mosier could not have exercised this right to withdraw in this case because the sentencing occurred at the same time as the plea. As soon as Ms. Mosier obtained an attorney to advise her, she immediately moved for withdrawal of her guilty plea. Chapter 4.08.120A states, “Whenever the Tribal Court has jurisdiction over a person and subject, it shall also have the power to use reasonable means to protect and carry out its jurisdiction. If means to enforce its jurisdiction are not spelled out in these rules or in the Tribal Code, the Court may use any appropriate procedure that is fair and consistent with the spirit of the tribal law which is being applied.” We believe that the procedures used in this case to obtain a guilty plea from Ms. Mosier were not fair, and we exercise our jurisdiction to allow for the withdrawal of the plea and a trial on the merits.

V. CONCLUSION AND ORDER

For the foregoing reasons, we reverse the trial judge and grant Ms. Mosier’s motion to withdraw the guilty plea. This matter is remanded to the trial court to be set for a trial on the merits.

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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.

SI code section 4.12.010A states, "The judge may appoint someone to represent a party or a witness if that person would be seriously prejudiced or handicapped by appearing without a representative and cannot afford to hire a representative." 

SI code 4.12.020C states, “No individual who has sat as a judge in any division of the Squaxin Island Tribal Court...during the previous twenty-four months shall be eligible to appear as a representative in any division of the Squaxin Island Tribal Court...."  This section provides further support for our holding that the Tribal Code recognizes that it is incompatible to serve as both a prosecutor and judge simultaneously.