Requesting Recusal: A How-To Guide

Every member of the Oneida Tribe should know that it’s their right to request recusal by members of the Appeals Commission.

Here’s how to do so based on an active case:

On September 18, 2013 the Plaintiff in Docket 13-TC-126, Leah Sue Dodge v Oneida Land Commission, filed the following:

On Tuesday September 24, 2013 the Plaintiff attended the scheduled hearing regarding Plaintiff’s motion for recusal of the Appeals Commissioners and submitted an ‘Addendum to Motion for Recusal and Substitution‘ wherein she referenced the Oneida Tribe’s Judiciary Canons of Judicial Code of Conduct, Article VI. Disqualification/Recusal, which states:

6-1  Judicial Officers shall disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including instances where:

a.   A Judicial Officer has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts.

b.   A Judicial Officer has served as a lawyer, advocate or personal representative in the matter before the Appeals Commission.

c.   A Judicial Officer’s spouse, and any reasonably close family member in the Judicial Officer or spouse’s family:

1.   Is a party to the proceeding or officer, director, or trustee of a party; or

2.   Is acting as a lawyer or advocate in the proceeding; or

3.   Is known by the Judicial Officer to have an interest that could be substantially affected by the outcome of the proceeding; or

4.   Is to the Judicial Officers’ knowledge likely to be a material witness in a proceeding before the Oneida Tribal Judicial System.

6-2  Judicial Officers shall recuse themselves in cases where some conflict of interest exists, potentially exists, or may be perceived to exist.

The Plaintiff’s Addendum also notes that the Judiciary Canons of Judicial Code of Conduct states the following:

Throughout these Canons, there are various references to a Judge’s “immediate family”. For the purposes of these canons, the term “immediate family” shall be defined as husband, wife, mother, father, son, daughter, brother, sister, grandparent, grandchild, aunt, uncle, niece, nephew, mother-in-law, father-in-law, brother-in-law, sister-in-law, first or second cousin, step-parent, or someone who is recognized by the Oneida General Tribal Council and/or its delegate as a member of the Judge’s extended family.

Appeals Commissioner Jean Webster admitted that she has a familial relationship with Oneida Law Office Attorney & Land Commission Counsel Becky Webster as the aunt to Becky’s husband. Based on the Judicial Code of Conduct, that alone is grounds for Tribe members to require Jean Webster’s recusal from any matters in which Atty. Becky Webster is involved.

The Plaintiff then asked each of the Appeals Commissioners assigned to the case (Jean Webster, Leland Wigg-Ninham and James VanStippen) if they or their immediate family members had any fiduciary relationship with the Defendant (the Land Commission) or with a body over which the Defendant had authority (the Division of Land Management).

Two of the Commissioners, Jean Webster and Leland Wigg-Ninham, admitted that they and/or their immediate family members as Tribe members residing on Trust or Fee-to-Trust land had a fiduciary relationship with the DOLM over which the Defendant has authority. According to the Judicial Code of Conduct that is grounds for a motion for recusal. (Jim VanStippen said he didn’t know whether or not such a relationship existed.)

Defendant’s counsel, Atty. Becky Webster, made an objection to the Plaintiff’s motion for recusal on the grounds that granting the motion would greatly undermine the capacities of the Appeals Commission given the extensive relationships, both familial and fiduciary, among the majority of Tribe members, but Appeals Commissioner Webster overruled Atty. Webster’s objection.

[Given that Environmental Department Director Pat Pelky is currently acting as the interim Director of the Division of Land Management, there would seem to be a basis on which to request recusal of Appeals Commissioners regarding matters involving the Environmental Department as well.]

Nevertheless, as with the recent request for the Appeals Commissioners’ recusal by the Tribal Chairperson regarding the failed Removal Petition against him, the Commissioners balked at the idea that they should recuse themselves despite their own and/or their immediate family members’ fiduciary relationships with a body over which the Defendant has authority, and despite the fact that the Lead Judicial Officer admitted that she had a familial relationship with the Defendant’s attorney.

What the Plaintiff then proceeded to do, which the Chairman’s counsel may not have done, was to object to the Appeals Commissioners resistance toward self-recusal on the basis that the Plaintiff maintained that she perceived that there were indeed conflicts of interest.

The Plaintiff also made it clear that she was not in any way waiving her right to participate in the future approval process of non-Oneida judicial officers.

Jean Webster noted to the Plaintiff that if the Appeals Commissioners were to be recused they could not issue a decision on the Plaintiff’s other motion for injunctive relief in the form of a cease-and-desist order regarding the construction of an office building in an agricultural zone, and that the structure might be completed in the time it took to find outside judicial officers.

The Plaintiff acknowledged that possibility but stated for the record that due to the fact that there is no ‘safe harbor’ clause regarding the Defendant’s decision to issue a zoning variance nor for the Zoning Department’s subsequent issuance of a building permit, if the non-Oneida judicial officers ruled for the Plaintiff they could order that the structure be demolished.

Any perceived ‘inequity’ based on that decision could be grounds for the property owner to seek damages from the Land Commission for improperly issuing a zoning variance.

The Appeals Commissioners took a 15 minute recess to consider the Plaintiff’s argument and returned to acknowledge that based on her stated perception of conflicts of interest, the Plaintiff had the right to have non-Oneida judicial officers hear the matter as explained in their Decision posted below:

The Decision states on page 4:

Petitioner alleged the Oneida Tribal Judicial System disregarded the laws in regards to conflicts of interest as Judicial Officer Chris J. Cornelius was initially assigned to the case, however, was removed from the case by the Lead Judicial Officer [Jean Webster] due to a conflict of interest. This example shows that the Oneida Tribal Judicial System is applying the laws on conflicts of interest.

But that claim blatantly ignores the very fact that the Plaintiff had to to request Chris Cornelius’ recusal despite the fact it should have been clear from the beginning that Chris’ mother Pat Cornelius is a party to the Defendant, as well as the fact that Jean Webster did not automatically recuse herself as soon as she knew that the attorney for the Defendant was her nephew’s wife and that Webster openly admitted, as the transcript will show, that she has sat on several cases where Atty. Becky Webster acted as attorney, thus clearly demonstrating that the Oneida Tribal Judicial System is NOT properly self-regulating regarding application of the Judicial Code of Conduct on clear conflicts of interest.

[As Oneida Eye has reported, the fact that Chris J. Cornelius is an Oneida Appeals Commissioner to begin with underscores the highly questionable level of integrity of the entire Oneida Tribal Judiciary System. See: The Curious Case Of Chris J. Cornelius.]

Page 4 also notes that the Plaintiff made a motion for the recusal of Atty. Becky Webster but states that, “Attorney Webster stated that she would not recuse herself from the case due to the Attorney/client privilege information; therefore, the Petitioner would not be able to call or subpoena Attorney as a witness.

However, the reality is that Atty. Webster was a vocal participant in the August 12, 2013 Land Commission Public Hearing and as such she can be questioned about her comments made at the public hearing because there is no ‘Attorney/client privilege’ attached to her statements and actions at that public hearing and therefore she is a material witness who can and will be subpoenaed.

A transcript of the September 24, 2013 Hearing regarding the Appeals Commissioners’ recusal will be posted when it’s available.

Unfortunately, the form for simply asking how many pages are in the transcript requires the person asking to agree to purchase the transcript, and the price of copies has – under the authority of OTJS Administrator Raeann Skenandore – recently increased to an astonishing $2.25 per page.

Yes, that is outrageous and can only cause one to conclude that the Appeals Commission is intentionally trying to make access to documentation unaffordable for many Tribe members.

When it was noted that $2.25 per page is very high given that Brown County charges $1.25 per page, the response of Trial Clerk Kristina Danforth was, “We’re not the County.”

Indeed.

To summarize:

  1. Make a motion for the judicial officers to recuse themselves based on any perceived conflicts of interest as outlined in the Judicial Code of Conduct.
  2. If they do not recuse themselves, assert that you have a right to require recusal based on your perception of their conflicts of interest as stated in the Oneida Tribe’s Judiciary Canons of Judicial Code of Conduct, Article VI. Disqualification/Recusal.
  3. Refuse to sign any documentation regarding your acceptance of their standing to adjudicate.
  4. State for the record and in writing that you in no way waive your right to have a say in the approval of outside judicial officers.

 

 


Sorry, Comments are closed.

Tags

Abdul Latif Mahjoob / ACTI / AREC / AREI / ARTI ACF Leasing ACF Services Alliance Construction & Design / Alliance GC (Global Conservation) American Combustion Technologies Inc. (ACTI) / American Combustion Technologies of California Inc. (ACTI) / American Renewable Energy Inc. (AREI) / American Renewable Technologies Inc. (ARTI) Artley Skenandore Jr. / Swakweko LLC Atty. William Cornelius Bruce King City of Green Bay Fmr. OBC Chair Cristina Danforth / Tina Danforth Fmr. OBC Chair Ed Delgado Fmr. OBC Sec. Patty Hoeft Fmr. OBC Vice-Chair Greg Matson Fmr. OBC Vice-Chair Melinda Danforth General Tribal Council / GTC Generation Clean Fuels Godfrey & Kahn Green Bay Renewable Energy LLC / GBRE Green Box NA Green Bay LLC Incinerators / Gasification / Pyrolysis / Plastics-to-Oil / Waste-to-Energy Jacqueline Zalim / Jackie Zalim Kelly Van Den Heuvel / Kelly Yessman Kevin Cornelius Mike Metoxen Mission Support Services Nevada LLC / Mission Support Services LLC Nathan King Nature's Way Tissue Corp. OBC Chief Counsel Jo Anne House OBC Vice-Chair Brandon Lee Stevens / Brandon Yellowbird Stevens Oneida Business Committee / OBC Oneida Energy Blocker Corp. Oneida Energy Inc. Oneida ESC Group LLC / OESC Oneida Nation of Wisconsin / Oneida Tribe of Indians of Wisconsin / Indian Country / Thornberry Creek LPGA Classic Oneida Seven Generations Corporation / OSGC Oneida Total Integrated Enterprises / OTIE OPD Lt. Lisa Drew-Skenandore Owen Somers / Oneida Internal Security Director Paul Linzmeyer Pete King III / King Solutions LLC Ron Van Den Heuvel Sustainment & Restoration Services LLC Todd Van Den Heuvel Tsyosha?aht Cathy Delgado Wisconsin Economic Development Corporation / WEDC

As It Happens