9 NICS App. 15, IN RE LAUREN BROWN (May 2009)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

In re the Disbarment of Lauren Brown.

Lauren Brown, Appellant,

v.

Puyallup Tribal Court, Appellee.

No. PUY-CV-02-08-030 (May 7, 2009)

SYLLABUS^*

Trial court instituted disciplinary proceedings against a member of the Tribal Bar and issued an order permanently disbarring the individual. Court of Appeals holds that trial court failed to follow proper procedure, abused its discretion, and based its decision on factual findings that were contrary to the evidence in the record. Trial court order reversed.

Before:            Michelle Demmert, Chief Judge; Gregory M. Silverman, Associate Judge; Randy Allen Doucet, Associate Judge.

Appearances:    Zenon Peter Olbertz, Attorney for Appellant Lauren Brown; Kenneth S. Kagan, Attorney for Appellee Puyallup Tribal Court.

OPINION

Doucet, J.:

I. BACKGROUND

This appeal arises out of an order issued on March 31, 2008, by the Puyallup Tribal Court permanently disbarring Appellant Lauren Brown from appearing and practicing in the courts of the Puyallup Tribe of Indians. The Appellant seeks review of the trial court order of permanent disbarment.

9 NICS App. 15, IN RE LAUREN BROWN (May 2009) p. 16

On February 15, 2008, Judge Francis X. Lame Bull filed a “Notice of Hearing and Order to Show Cause Regarding Disciplinary Sanctions Against A Member of the Tribal Court Bar”. The Notice was directed to Lauren Brown, then serving as an Assistant Prosecutor and Presenting Officer of the Puyallup Tribe of Indians. The date set for the Order to Show Cause hearing was 9:00 a.m. on February 29, 2008. Judge Lame Bull cited the Puyallup Tribal Judicial Code (“PTJC”), Rules of Discipline, §4.03.640, as authority to bring the disciplinary action against Ms. Brown. The disciplinary action was based on acts and representations allegedly made by Ms. Brown in the course of a Youth in Need of Care proceeding over which Judge Lame Bull presided.

Between February 27, 2008 and February 29, 2008, Ms. Brown filed a Request for Discovery, a Motion to Continue, an Amended Motion to Continue, and a Motion to Recuse and Affidavit of Prejudice, the latter arguing that Judge Lame Bull, as the Petitioner, could not also preside over the hearing without violating PTJC §4.03.285, which requires any Puyallup Tribal Court judge to disqualify himself in any proceeding in which the judge has an actual bias or prejudice or in which the judge’s impartiality might reasonably be questioned.

The hearing was held on February 29, 2008, with Ms. Brown appearing and representing herself. At the outset of the hearing, Judge Lame Bull denied Ms. Brown’s motions to continue and to recuse.¹ Judge Lame Bull conducted the hearing voir dire style, in which a question and answer dialogue took place, with Judge Lame Bull asking questions related to Ms. Brown’s actions in the Youth in Need of Care case. Judge Lame Bull did not introduce or admit any documents or exhibits into the record and did not provide Ms. Brown with copies of any documents or exhibits prior to issuing his written Disciplinary Order.

The Disciplinary Order was filed on March 31, 2008, permanently disbarring Ms. Brown from practice of law before the Puyallup Tribal Courts. The Disciplinary Order includes four exhibits, none of which appear to have been provided to Ms. Brown or formally entered into the record prior to the issuance of the Disciplinary Order. Ms. Brown filed a Notice of Appeal on April 29, 2008.

On appeal to this Court, Ms. Brown filed a motion on May 22, 2008 seeking an order compelling the Tribal Court to produce the record of the disciplinary proceeding and the underlying Youth in Need of Care proceeding. This court granted the motion and issued an Order on June 18, 2006.

The Tribal Court strenuously objected to producing the record in the underlying matter and on July 24, 2008, the trial court filed a “Sua Sponte Motion for Reconsideration”, raising various issues, including reconsideration of this Court’s Order requiring production of the

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records which was the basis for the disciplinary proceeding. Upon further review, we evaluated this court’s role, agreed with the trial court and granted the reconsideration in the trial court’s favor and set a briefing schedule.

Ms. Brown renewed her motion for production on August 26, 2008.  The parties subsequently stipulated that the record on appeal would be limited to the hearing transcript, record, and orders entered in the disciplinary proceeding. As a result of the stipulation and Judge Lame Bull’s failure to introduce any documents or exhibits into the record, documentary evidence from the underlying matter that may have proven or disproven the accusations against Ms. Brown is not part of the record on appeal.

II. STANDARD OF REVIEW

An individual upon whom a disciplinary sanction has been imposed by the Tribal Court may appeal that determination to the Tribal Court of Appeals. PTJC §4.03.660. The Court of Appeals may, upon review of the Tribal Court’s decision, affirm, reverse, modify, or remand that decision. PTJC §4.03.420. The Appellate Court shall by majority vote decide all cases based upon the briefs, memoranda or written statements filed, the trial record, and oral arguments. PTJC §4.03.570.

The Court of Appeals is directed by PTJC §4.03.590, that a decision of the Trial Court will be reversed, modified, or remanded only:

III. ANALYSIS

A.    Did the court err in conducting a disciplinary proceeding pursuant to a “Notice of Hearing and Order to Show Cause”?

The first issue is whether it was error for the trial court to use a “Notice of Hearing and Order to Show Cause” to provide notice of the disciplinary hearing to Ms. Brown and to conduct the disciplinary hearing as a show cause hearing. The rule governing disciplinary proceedings for Puyallup Tribal Bar Members provides that, “All interested parties shall be notified at least ten (10) days in advance of the hearing…” PTJC §4.03.650. The trial court is not directed to use

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any specific method of notification, but minimally any notification must satisfy basic due process requirements for providing hearing notice. The notification must identify the effected party. It must also provide the date, time and location of the hearing. The effected party must be sufficiently notified of the allegations to defend themselves and the consequences of the matter.

The “Notice of Hearing and Order to Show Cause” (“Notice”) issued on February 15, 2008, notified Ms. Brown of the disciplinary action and the date, time and location of the hearing. The Notice cited the code section from the Rules of Discipline, provided Ms. Brown notice of the alleged disciplinary violations and provided sufficient factual information to make her aware of the specific incidents on which the action was based. The notice also gave her notice of the potential consequences of the disciplinary hearing. The notification requirement of PTJC §4.03.650 was satisfied by the “Notice of Hearing and Order to Show Cause”.

However, using the order to show cause as the mechanism to have Ms. Brown appear in court also established the format for how the hearing was conducted. Judge Lame Bull characterized the disciplinary hearing as, “This is a matter not unlike contempt of court. It’s the same kind of – of setting.” Hearing Transcript Pg. 7 line 6. We disagree. Disciplinary proceedings and contempt proceedings as codified in the Puyallup Tribal laws serve different purposes. Disciplinary proceedings serve to uphold the Rules of Discipline provided for in PTJC §4.03.640. Contempt proceedings initiated by an Order to Show Cause pursuant to Puyallup Tribal Civil Procedures Code §4.02.220 serve to enforce court orders issued in civil cases. The distinction matters because the type of proceeding determines who must carry the burden of proof.

By issuing an order to show cause, Judge Lame Bull shifted the burden of proof to Ms. Brown. The order to show cause is intended as a procedural mechanism to bring a party before the court to answer for alleged failures to comply with court orders in civil matters. For example, an order to show cause might be used in a civil matter when a party is alleged to have failed to pay court ordered child support. That party then has the burden to prove that they paid child support, or face possible sanctions for violating a court order.

An order to show cause requiring a party to appear before the Court and explain why they should not be held in contempt of court and subject to sanctions may be issued by the Court upon a showing that the person to whom the order is to be directed has violated a valid existing order of the Court after he or she has had notice of it. (Emphasis added).

PT Civil Procedures Code § 4.02.220, Order to Show Cause.

The burden of proof in a Disciplinary Proceeding is on the party bringing the allegations before the court. PTJC §4.03.650, provides that, “Upon completion of the investigation, the Court shall conduct an open hearing to determine whether the allegations are well founded.”

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(Emphasis added). “All interested parties … shall be entitled to present evidence and confront witnesses.” (Emphasis added). Id. “Following the hearing, the Tribal Court shall make a finding of whether or not a violation has been established…” (Emphasis added). Id.

The language emphasized in the paragraph above indicates that allegations of a violation must be established, and the violation must be proven. The burden of proof should have been on the accuser, not Ms. Brown.

The disciplinary hearing transcripts indicate that the trial court placed the burden of proof on Ms. Brown to show that she had not committed any acts constituting misconduct.

This Court wants to know - - wants to have an explanation. You’re not – you’re not guilty as a matter of - - of just what occurred. This is the time and place for you to come forward and explain your conduct. And then the Court will make a determination based upon your explanations.

Disciplinary Hearing Transcript, Pg. 8, lines 16-21.

That’s our view of what happened. (Referencing the Notice of Hearing and Order to Show Cause issued on February 15, 2009.) If that’s not what happened, then that’s why we’re here today, for you to give us, the Court, an explanation. See? And that’s why we’re here.

Disciplinary Hearing Transcript, Pg. 9, lines 6 – 9.

It appears that the trial court presumed that the allegations were true at the outset of the hearing. The trial court thereby placed the burden on Ms. Brown to prove otherwise. By shifting the burden of proof to Ms. Brown, the trial court improperly relieved itself of its obligation to present evidence supporting the allegations and, in turn, deprived Ms. Brown of her right under PTJC §4.03.650 to confront witnesses and present rebuttal evidence in her own defense.

The use of the Order to Show Cause as the procedural mechanism to conduct Ms. Brown’s disciplinary hearing was an error in the interpretation and application of the law. We believe this error had the potential to impact the outcome of the hearing and is therefore reversible error.

B.    Did the trial court judge err in not recusing himself?

The next issue is whether Judge Lame Bull should have recused himself from the disciplinary proceeding involving Ms. Brown.

9 NICS App. 15, IN RE LAUREN BROWN (May 2009) p. 20

Any Puyallup Tribal Court Judge shall disqualify himself or herself in any proceeding in which he or she has a personal bias or prejudice concerning a party, or his or her impartiality might be reasonably questioned.

PTJC §4.03.285 (1)

Notwithstanding the fact that Ms. Brown filed a “Motion to Recuse and Affidavit of Prejudice” with the trial court, the code leaves it to the trial court judge to determine whether his or her impartiality might reasonably be questioned in a particular matter.

The Notice of Hearing and Order to Show Cause served on Ms. Brown contains statements that might reasonably call into question the trial judge’s impartiality to preside over the disciplinary matter.

These alleged violations of the respondent’s oath of admission, and the rules of discipline violate many provisions of the Code of Ethics and are egregious and screams for remedial action. The conduct of the respondent is divisive, disrespectful, and a flagrant disregard for the authority of this court. The respondent has lied and misrepresented facts in this matter, which is outrageous conduct for an officer of this court to engage in.

Through respondent’s conduct she has interfered in the administration of justice in three tribunals, but respondent also has grossly infringed upon the civil liberties of a minor child.

Notice of Hearing. Page 6, Lines 22-24, and Page 7, Lines 1-3.

Although, the intent of the trial court judge may have been to provide notice of the allegations to Ms. Brown, the statements also might reasonably be interpreted as an indication that the judge presiding over Ms. Brown’s disciplinary hearing had prejudged her alleged conduct.

Further, this Appellate Court has concerns regarding the ability of the trial judge to act as judge and witness.² Certainly, in direct contempt proceedings where a trial judge witnesses actual misconduct taking place in the courtroom, it is acceptable for the trial judge to handle the matter at the earliest possible moment in order to restore order to the proceedings. However, the alleged misconduct in this matter took place before other tribunals, in previous hearings, and in the drafting of associated pleadings and orders, not all of which were directly within the view of the trial court. The trial court judge thus brought the disciplinary action in part based on

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information from third-parties and based on alleged actions that took place outside the view of the court. The trial judge was not only the complaining party, but also a potential witness because he was the recipient of the third party information, part of the chain of custody of documents that might be used to substantiate the allegations, and claimed direct knowledge of other alleged misconduct. By deciding to preside over the disciplinary hearing, the trial judge made it difficult, if not impossible, for Ms. Brown to question the central “witness” in the case, Judge Lame Bull, who was also presiding over the show cause hearing.

In the Notice of Hearing and Order to Show Cause, Judge Lame Bull stated, “Ms. Brown shall be afforded her due process rights at this Show Cause Hearing, meaning she shall receive notice at least ten (10) days before the hearing, and she shall be entitled to present evidence and call witnesses.” (Emphasis added). Notice, p. 7, lines 4- 7. But Judge Lame Bull left out a crucial element, which is that Ms. Brown’s due process rights also require that she is entitled to have a neutral and detached magistrate preside over her disciplinary hearing.

The contents of the Notice of Hearing and Order to Show Cause, statements made by Judge Lame Bull during the hearing, and the inherent conflict in serving as both witness and judge each provide a basis upon which the trial judge’s impartiality might reasonably be questioned. Judge Lame Bull therefore should have recused himself from presiding over the disciplinary hearing. See PTJC § 4.03.285 (1). His decision to proceed was reversible error because it denied Ms. Brown her fundamental due process right to have a hearing before a neutral and detached magistrate.

C.        Did the trial court err in conducting a voir dire proceeding which denied Ms. Brown her right to due process of law?

This issue requires an examination of the role of the trial judge in sanction proceedings under PTJC §4.03.650. A plain reading of the code section does not provide specific procedures for how a sanction matter should be adjudicated. The trial judge’s role is always to ensure the administration of a fair process. When the law does not provide specific guidance, it is for the trial judge to fashion a fair process.

The Appellant argues that Judge Lame Bull acting as judge and witness denied her due process rights and rights under PTJC §4.03.650, to “confront witnesses.” We agree. During oral arguments, discussion took place that Ms. Brown had the opportunity to cross-examine the judge during the voir dire question and answer session. That makes for an awkward situation to say the least.³ Legal advocates are not trained to cross-examine judges. The judge was not sworn as a witness. The impact of this manner of proceeding was to deny Ms. Brown her right to confront witnesses. Not only was the judge a witness, but he was the complaining witness who brought the disciplinary action.

9 NICS App. 15, IN RE LAUREN BROWN (May 2009) p. 22

Nowhere in the Notice of Hearing or in the transcripts from the disciplinary hearing was Ms. Brown advised of the procedural rules that would govern the disciplinary hearing. There was no mention of who had the burden of proof or what was the standard of proof. No mention of whether there would be rules of evidence. Ms. Brown was not informed prior to the hearing that the Judge could be called as a witness by Ms. Brown. It was only after the hearing, at the appellate oral argument that it was suggested that Ms. Brown could have cross-examined the judge as a witness.

The trial court decision to conduct a voir dire proceeding denied Ms. Brown her right to confront witnesses as provided for by PTJC §4.03.650. The trial court’s actions were an abuse of discretion that prevented Ms. Brown from receiving a fair trial and reversible error.

D.        Did the court err in making factual findings that were not supported by the record?

PTJC §4.03.650, provides that, “Upon completion of the investigation, the Court shall conduct an open hearing…” It is apparent that evidence relevant to the disciplinary action was still being gathered by Judge Lame Bull after the conclusion of the disciplinary hearing held on February 29, 2008. As Judge Lame Bull himself stated to Ms. Brown at the hearing:

But I’m going to just say that beginning of the first ten days - - days of March I will try to have this thing totally resolved. That may be dependent upon how quickly we get stuff from Montana. I’m assuming that they would have no problem.

I don’t think there would be any problem with Pierce County, that we could start on that this afternoon. And we’ll get a transcriber in to transcribe this information and get it to you as quickly as you can so that you in and of yourself can review it so that you don’t feel that anyone is hiding the ball on you. Okay? You’ll get those documents.

Disciplinary Hearing Transcript, Pg. 91, Lines 14-25.

Based on these statements by Judge Lame Bull, we can only conclude that the investigation was on-going and therefore not completed at the time of Ms. Brown’s disciplinary hearing.

The exhibits Judge Lame Bull attached to the Disciplinary Order issued on March 31, 2008, were not admitted into evidence, nor made part of the record at the hearing. To hold the disciplinary hearing while awaiting documents that would be reviewed and considered by Judge Lame Bull in his decision, without providing such information to Ms. Brown at the disciplinary hearing, violates basic principles of due process and the explicit directive of PTJC §4.03.650 that the hearing be held only after the investigation of the allegations is complete. Ms. Brown could

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not defend herself without having full knowledge and access to all information and documentation that the fact finder relied upon in making a disciplinary determination.

The trial court also failed to provide Ms. Brown with copies of the documents the trial court promised at the disciplinary hearing to provide to her before issuing its final ruling. Ms. Brown was denied the opportunity to review, object, call witnesses in rebuttal, or provide information that might call into question or enlighten the court about the documents referred to by the court during the disciplinary hearing.

The trial court’s decision to conduct the disciplinary hearing while the investigation was on-going was contrary to PTJC §4.03.650. We conclude that the trial judge’s consideration of documents not properly admitted into the record and obtained after the disciplinary hearing denied Ms. Brown her rights to present evidence in rebuttal and confront witnesses. The conduct of the trial judge was an abuse of discretion that prevented Ms. Brown from receiving a fair trial and is reversible error.

We would also note that the documents that were attached to the Disciplinary Order as exhibits are themselves probative of nothing. The four exhibits show only that tribunals of two other jurisdictions held proceedings concerning the same youth; that Ms. Brown appeared before one of those tribunals in her capacity as the Tribe’s Indian Child Welfare Act representative; and that Ms. Brown signed her oath of admission to the Puyallup Tribal Court Bar. The exhibits in no way establish that Ms. Brown committed any of the acts of which she was accused by Judge Lame Bull. Because Judge Lame Bull did not testify himself, produce any witnesses against Ms. Brown, or introduce any documents into the recording, there is no evidence whatsoever in the record to establish that Ms. Brown committed any of the acts of which Ms. Brown was accused. The only actual evidence in the record before us is the sworn testimony of Ms. Brown refuting the accusations. This factor alone requires reversal of the Disciplinary Order.

IV. CONCLUSION

The Court’s use of the “show cause” proceeding, which improperly shifted the burden of proof to Ms. Brown, represents an error as to the interpretation and application of the law by the judge under PTJC §4.03.590(3). Because Judge Lame Bull’s impartiality could be reasonably questioned, his failure to recuse himself constitutes an abuse of discretion under PTJC §4.03.590(1). The Court’s decision to conduct a voir dire proceeding effectively denied Ms. Brown her right to confront witnesses and therefore constituted an abuse of discretion under PTJC §4.03.590(1). The Court’s decision to proceed with the hearing while it was still gathering documentary evidence and the Court’s subsequent failure to provide Ms. Brown with the documents and an opportunity to respond each represents an abuse of discretion under PTJC §4.03.590(1), and the Court’s decision is clearly contrary to the evidence that is actually in the record, requiring reversal under PTJC §4.03.590(4).

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PTJC §4.03.590 grants the Court of Appeals the authority to modify, remand, or reverse the trial court’s decision. Given the numerous procedural defects and complete lack of evidence against Ms. Brown, it would not be appropriate to simply modify the Disciplinary Order. Given that the trial court had ample opportunity to substantiate the claims against Ms. Brown and failed to do so, we do not believe that remanding the matter and forcing Ms. Brown to defend herself against these charges for a second time would be appropriate either. We are mindful that the accusations against Ms. Brown were serious. We are also mindful that the Tribal Court has an ongoing responsibility to protect Tribal members and the public at large from inappropriate actions by members of the Puyallup Tribal Bar.⁴ However, in this particular case, given Ms. Brown’s plausible refutations of the accusations, sworn to on the record; the numerous procedural errors committed by the trial court; and the complete lack of evidence substantiating the accusations, we believe justice requires that the Disciplinary Order be reversed. Ms. Brown is to be reinstated as a member in good standing of the Puyallup Tribal Court Bar immediately. This decision is final pursuant to PTJC §4.03.580.

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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.

The record contains no formal ruling or other response from Judge Lame Bull regarding Ms. Brown’s Request for Discovery.

Because Judge Lame Bull did not offer formal testimony or introduce documentary evidence or exhibits at the hearing, he technically was not a “witness,” and yet, as the source of the accusations, against Ms. Brown, which were set forth as “facts,” Judge Lame Bull assumed the role of de facto witness.

Calling the judge as witness creates additional problems. For example, if the judge was to testify, who would evaluate his testimony?

Because misconduct and discipline involving members of the Puyallup Tribal Bar are such serious matters, and because this case shows that the current rules governing discipline and sanctions do not provide adequate guidance to the trial court, particularly where it is the trial court that initiates the disciplinary proceedings, this Court urges the Puyallup Judiciary to work with the Tribal Council, Tribal Attorney, Judicial Administration Committee, and members of the Puyallup Tribal Bar to develop procedures to be adopted as amendments to PTJC Title 4, Chapter 3, Subchapter 6 addressing the gaps in the rules and concerns raised by this opinion.