7 NICS App. 3, HOOPA VALLEY TRIBAL COURT v. TAYLOR (March 2005)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

Hoopa Valley Tribal Court, Plaintiff/Appellee,

v.

Keith Taylor, Defendant/Appellant.

No. C-04-114/A-04-007 (March 1, 2005)

SYLLABUS^*

Trial court initiated contempt proceeding against tribal spokesperson and denied spokesperson’s motion to disqualify the presiding judge. Court of Appeals holds that trial judge had not abused his discretion and neither tribal code nor tribal court precedent prohibit a judge who initiates a contempt proceeding from presiding over that proceeding. Trial court order affirmed.

Before:

Lisa E. Brodoff, Chief Justice; Eric Nielson, Justice; Darwin S. Long Fox, Justice.

OPINION

Mr. Keith Taylor, Appellant, timely appeals an order entered by Hoopa Valley Tribal Court Chief Judge Richard Blake on October 14, 2004.¹ The order denies Mr. Taylor’s motion to disqualify Judge Blake from presiding over a contempt proceeding initiated by Judge Blake against Mr. Taylor, a Hoopa Valley Tribal Court Spokesperson.

Oral argument was heard on February 17, 2005. Mr. Taylor appeared on his own behalf and Michelle Krieger appeared on behalf of the Appellee, the Hoopa Valley Tribal Court.

I. FACTS

On August 9, 2004, Hoopa Valley Tribal Court Chief Judge Richard Blake issued a Notice of Hearing and Order to Show Cause, which directed Hoopa Valley Tribal Court Spokesperson, Mr. Keith Taylor, to show cause why he should not be held in civil contempt of

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court under Hoopa Valley Tribal Code Title 3, Rule 60.1(3) and (5)² and sections 6 and 9³ of the Hoopa Valley Spokesperson’s Oath set forth at Hoopa Valley Tribal Code Title 3, Rule 7(c).

The order alleges that during a hearing in a case where Mr. Taylor represented one of the parties, Mr. Taylor assured the court he did not receive direction from the Chairman of the Hoopa Valley Tribe or its Office of Tribal Attorney. According to the order, a subsequent memorandum from the Chairman contained identical or “nearly identical” language as the brief Mr. Taylor filed in that case. Additionally, the other party in the case believed he heard Mr. Taylor discuss the case with the Chairman and a third person alleges he heard Mr. Taylor discuss another pending case with the Chairman.⁴ The order notified Mr. Taylor that the allegation of contempt of court was based on:

On August 18, 2004 Mr. Taylor filed a motion under HVTC § 1.2.10 and § 1.3.04 requesting Judge Blake disqualify himself from presiding at the contempt hearing. Mr. Taylor argued that Judge Blake initiated the contempt proceeding to retaliate against him for filing an appeal in a case decided by Judge Blake and for his “vigorous representation” of his non-member clients in the Hoopa Valley Tribal Court. Mr. Taylor denies the allegations and asserts the order itself “demonstrates that the court has formed an opinion that there is a factual basis to proceed in the order to show cause for civil contempt.”

A hearing was held on Mr. Taylor’s disqualification motion on October 6, 2004. On October 14, 2004, Judge Blake entered a written order denying Mr. Taylor’s motion. Judge Blake found Mr. Taylor failed to show why he (Judge Blake) should disqualify himself from hearing the contempt proceeding.

Mr. Taylor appealed Judge Blake’s order. On appeal, in addition to the arguments he made in his disqualification motion, Mr. Taylor argues that Judge Blake cannot be impartial because: (1) in an unrelated case Judge Blake asked Mr. Taylor’s client if she knew Mr. Taylor could not represent her should her case transfer to state court; and (2) Judge Blake failed to

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provide Mr. Taylor with the memorandum from the Hoopa Valley Tribal Chairman identified in Judge Blake’s show cause order.

II. DISCUSSION

We review a Hoopa Valley trial court’s decision to deny a motion to disqualify a judge under the abuse of discretion standard. Pratt v. Hoopa Valley Tribal Police, 4 NICS App. 193, 195 (Hoopa Valley Tribal Ct. App. 1997). Although the abuse of discretion standard can be defined in a number of ways⁵, under that standard an appellate court will reverse a trial court only where it has "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir.1980).

The criteria for disqualification of a judge are found in HVTC § 1.2.09 and § 1.3.04. HVTC § 1.2.09 provides in relevant part:

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 other reason the judge cannot be impartial; or … where the judge finds that a reasonable person would believe that the Judge could not be impartial.

The question of whether a Hoopa Valley Tribal Court judge should be disqualified from hearing a case under HVTC § 1.2.09 is analyzed under the factors articulated in Hoopa Valley Tribal Council v. Risling, 4 NICS App. 66, (Hoopa Valley Tribal Ct. App. 1996). Pratt, 4 NICS App. at 196. In Risling, this Court held:

Any judge or arbiter shall disqualify himself or herself in any proceeding:

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Risling, 4 NICS App. at 70.⁶

The disqualification of a Hoopa Valley Tribal Court judge is also governed by HVTC § 1.3.04. This provision reads in relevant part that a defendant or other party to any proceeding “…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.” (Emphasis added). The code does not define what constitutes a “satisfactory reason.” Mr. Taylor does not argue that this Court should analyze a disqualification motion brought under § 1.3.04 differently than a motion brought under § 1.2.09. Therefore, for the purposes of this appeal only, this Court will apply the Risling/Pratt factors to both HVTC § 1.2.10 and § 1.3.04.

We reject Mr. Taylor’s primary contention that Judge Blake must disqualify himself from presiding over the contempt of court hearing because he issued the show cause order. Under HVTC Title 3, Rule 60.2 § 2, a judge has the implicit authority to initiate contempt proceedings.⁷ If the Hoopa Valley Tribe intended to prohibit the judge who issues the show cause order from presiding at the subsequent hearing, the Tribe would have done so in its Code. Moreover, that the Hoopa Valley Tribal Code contains no such prohibition is consistent with federal law.⁸ Mr. Taylor has not cited any relevant case law, Hoopa Valley Tribal Code provision or Hoopa Valley tribal tradition that prohibits the judge who issues the show cause order from presiding at the subsequent hearing. Consequently Mr. Taylor fails to persuade us that we should adopt such a rule.

Mr. Taylor’s allegations that Judge Blake initiated the contempt proceeding to retaliate against him for filing appeals in decisions issued by Judge Blake and for vigorously representing his clients are unsupported. Appeals from trial court judgments and decisions are not

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uncommon. A Hoopa Valley Tribal Court judge knows every final decision or judgment may be subject to appellate review. See, HVTC Title 3, Rule 61 (right to appeal from a final judgment). Furthermore, trial judges are aware it is counsel’s duty to zealously and vigorously represent his or her clients. We will not presume as a matter of law that a trial judge retaliates against counsel merely because counsel’s clients appeal the judge’s decisions or because counsel’s representation is vigorous.⁹

Mr. Taylor argues for the first time on appeal that Judge Blake’s failure to provide him with the Chairman’s memorandum also shows Judge Blake is biased towards him. There is nothing in the record to indicate Mr. Taylor requested the memorandum. Moreover, Ms. Krieger, the trial court’s counsel assured this Court at oral argument that Judge Blake will immediately provide Mr. Taylor with the memorandum. Mr. Taylor’s allegation regarding the memorandum is insufficient to show Judge Blake cannot be impartial or that his impartiality might reasonably be questioned.

Mr. Taylor also argues for the first time on appeal that Judge Blake cannot be impartial because in an unrelated case Judge Blake asked Mr. Taylor’s client if she knew Mr. Taylor could not represent her in state court. According to Mr. Taylor, that inquiry occurred after his client requested Judge Blake transfer her case from the Hoopa Valley Tribal Court to state court. Mr. Taylor cites no authority, nor can we find any, to support his contention the inquiry was improper or evidences Judge Blake’s bias towards him.

In his order denying Mr. Taylor’s disqualification motion, Judge Blake not only addressed each of Mr. Taylor’s allegations of bias and impartiality, Judge Blake also noted that he ordered the show cause hearing to ensure “Mr. Taylor had the opportunity to defend himself and that no contempt finding issues unless it is merited.” We assume Judge Blake will fulfill his judicial responsibility and oath and carefully weigh the evidence against the applicable legal standard.¹⁰

Mr. Taylor also asks this Court to dismiss the contempt proceeding. Mr. Taylor argues that the same allegations of bias support a finding that the contempt proceeding itself violates the due process and equal protection provisions of the Indian Civil Rights Act, 25 U.S.C. § 1302. The only issue before us is whether the trial court abused its discretion by denying Mr. Taylor’s disqualification motion. If after the hearing Mr. Taylor is found in civil contempt of court, it

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appears he has the right to full appellate review of that decision under HVTC Title 3, Rule 7 (g)(2).¹¹ An appeal from an adverse judgment is the appropriate forum for Mr. Taylor to raise any issues regarding the procedural or substantive merits of the case, including any claims based on violations of the Indian Civil Rights Act.

III. CONCLUSION

When a judge initiates a contempt proceeding, it is a better practice for a different judge to preside at the subsequent hearing. However, absent a sufficient showing of bias, the appearance of impartiality, or any of the other Risling/Pratt factors, disqualification is not required under the Hoopa Valley Tribal Code, Hoopa Valley tribal tradition or as a matter of law.

On this record, this Court finds Mr. Taylor has not shown Judge Blake is biased towards him, nor that Judge Blake’s impartiality might reasonably be questioned. The denial of Mr. Taylor’s disqualification motion was not an abuse of discretion.

The order denying Mr. Taylor’s Motion to Disqualify Chief Judge Richard Blake is affirmed

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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.

Under Hoopa Valley Tribal Code § 1.2.10 and § 1.3.04, a party has the right to appeal immediately a trial court’s order denying a motion to disqualify a judge.

Under HVTC Title 3, Rule 60.1(3) “Misbehavior or willful neglect or violation of duty by a spokesperson or other person in the performance of a judicial service” constitutes civil contempt. Under HVTC Title 3, Rule 60.1(5) “Disobedience of any lawful judgment, order, or process of the court” constitutes civil contempt.

Those sections read: “6. I will employ such means only as are consistent with truth and honor and will never seek to mislead a judge or jury by any false statement” and “9. I will comply with all orders of the court.” HVTC Title 3, Rule 7 ( c) § 6 and § 9.

The allegations are supported by third-party affidavits.

Abuse of discretion has been defined as a judge’s failure to exercise sound, reasonable, and legal decision-making. Black’s Law Dictionary at 10 (7th Ed. 1999)

The only issues in this case are whether Judge Blake has a personal bias towards Mr. Taylor or whether his impartiality might be reasonably questioned.

That Rule reads:

If a contempt is not committed in the presence of the court or of the judge in chambers, a contempt proceeding shall be based on an affidavit of the facts constituting the contempt presented to the court and an order to show cause and notice of hearing shall issue and be personally served on the alleged offending person. The order to show cause and notice of hearing may be made by means of certified mail, return receipt requested only if personal service is not possible or if the alleged offending person resides outside the exterior boundaries of the Hoopa Valley Indian Reservation. (Emphasis Added). HVTC Title 3, Rule 60.2 § 2.

Here the proceeding is based on two affidavits.

The U.S. Supreme Court has stated that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994); See United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000) ("A predisposition acquired by the judge during the course of the proceedings will only constitute impermissible bias when it is so extreme as to display clear inability to render fair judgment."); United States v. Bibbins, 113 F. Supp. 2d 1194 (E.D. Tenn. 2000) (recusal of a judge not required where the show cause order does not make a preliminary finding of contempt).

Mr. Taylor also argues Judge Blake is biased towards him because Judge Blake ordered one of Mr. Taylor’s clients to pay a $3,500.00 appeal bond, which Mr. Taylor contends was excessive. Under HVTC Title 3, Rule 61, the trial court has the discretion to order an appeal bond. Mr. Taylor provides no persuasive argument that the bond in that particular case was excessive. Even if the bond was excessive, Mr. Taylor fails to show how that evidences Judge Blake’s bias towards him.

See Ungar v. Sarafite, 376 U.S. 575, 584, 84 S.Ct. 841, 847, 11 L.Ed.2d 921 (1964) ("We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions.”).

That provision reads in part: “Any person denied admission to the Tribal Court Bar or any spokesperson found guilty of contempt of court by the trial judge may appeal in accordance with the procedures established in this Code.” (Emphasis Added). HVTC Title 3, Rule 7 (g)(2).