Attorneys representing the Seneca-Cayuga Tribe have asked a CFR judge to recuse himself from a case involving their client, alleging that his public statements violated judicial code and created an appearance of impropriety.
Tom Osterholt and Thomas Hayde, attorneys from the St. Louis law firm of Spencer, Fane, Britt and Brown, presented their concerns to Court of Indian Offenses Judge William Wantland as he considered a writ of mandamus filed one day after he announced to the court that he would grant the writ - if one were to be filed - in order to ensure that tribal members are offered an adequate general council meeting, given an opportunity to confirm a grievance committee, allowed to file complaints and are able to follow grievance proceedings in the manner in which they existed in 1993.
The writ, if approved, would put the court in the position of ordering what “may be” an attempt by tribal leadership to deny the membership its rights to resolve matters internally, according to Wantland, and “could be” an intentional effort by leadership to act in a manner that does not represent the best welfare interests of the tribe.
“Osterholt said tribal attorneys struggled with the decision to ask Wantland to disqualify himself, but madee the request after reviewing codes of conduct.
“It would be a disservice to our client to not take a position on this,” Osterholt said. “It is a clear violation of judicial code of conduct … It creates an appearance of impropriety that, no matter what the court does, will always be there.”
Tribal attorney Jess Green also expressed his concern regarding Wantland's remarks, saying that he had removed due process for Seneca-Cayuga grievance committee members and issued a prejudgment on matters he had not yet been presented with.
“Upon the filing of a motion for a writ of mandamus, a writ will be issued by this court, ordering a meeting of the general council for the purpose of a hearing to determine whether the present grievance committee should be removed,” Wantland said Monday.
Green said he had never seen a judge's order published in a newspaper before the matter was in court. He asked Wantland to issue the writ - which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so - show cause for a (meeting) date and then recuse himself.
Tribal attorneys are also seeking a stay of the order, if the writ is issued, and said they will appeal.
Wantland expressed his understanding of concerns regarding judicial code violations, but believes them to be of no bearing on the case. He said a writ of mandamus is an “extraordinary writ” reserved for extraordinary cases.
“This is an extraordinary case,” Wantland said. “Writ of mandamus may very well be the only resolution.”
Tribal factions have been unable to resolve their differences since an election dispute fractured the tribe in June.
Wantland's decision on the writ is expected today.