Attorney Pablo Padilla’s Advice Problematic
On January 23rd, Attorney Pablo Padilla advised the Tribal Council to amend Resolution #02-198, “Prohibiting Conflicts of Interests.” The amendment will allow Justices on the Appellate Court to serve as lawyers for tribal entities before the Tribal Court and the Appellate Court.
Initially, the Resolution prohibited all Tribal Officials from representing anyone before the courts. Some reasons behind the prohibition were to protect judges from:
- Potential intimidation from Tribal Officials;
- Appearances of impropriety; &
- Undue or Improper influence.
The Resolution also helped to:
- Prevent parties from getting an unfair advantage;
- Protect the integrity of the courts; &
- Promote the public’s confidence in the court system.
Nevertheless, the Council wanted to appoint Denise Zuni to the Appellate Court. Ms. Zuni is the attorney for the Isleta Pueblo Housing Authority (IPHA). If the Council appoints Ms. Zuni as a Justice, the Resolution would prohibit her from representing IPHA.
So, Pablo Padilla advised the Council to eliminate the prohibition. This would allow Ms. Zuni to serve as a Justice and represent IPHA. She could then “recuse” herself from cases where IPHA is a party.
Padilla, however, did not explain the policy reasons behind the prohibition. Nor, did he alert the Council to problems that are likely to arise by allowing a Justice to represent a party or parties before the courts.
Thus, the Council followed Padilla’s advice and quickly amended the Resolution. They then appointed IPHA’s attorney to the Appellate Court.
Pablo Padilla’s solution to amend the Resolution does not eliminate the problems with Tribal Officials representing anyone before the courts. His solution is like repealing laws against drunk driving. Police would no longer be able to arrest and charge people with drunk driving because it wouldn’t be a crime. But, even though drunk driving is no longer a “crime” — all the dangers would still exist from drunk drivers.
In other words, eliminating the law does not eliminate the problems that the law was trying to protect against.
What are some of those problems?
Fear of Reprisal
Judges are supposed to make rulings without fear of retaliation.
But, now, lower court judges will need to fear a Justice punishing them in retaliation for rulings against her client.
The Appellate Court has superintending control of the lower court judges. Basically, this means that the Appellate Court has the power to order the lower court judges to do whatever the Appellate Court decides. They use this power to enforce their decisions and to maintain discipline of lower court judges.
So, Appellate Justices have the power to discipline or punish lower court judges. The question is whether the punishment is out of retaliation.
Ultimately, we should not have judges that are fearful of retaliation. A judge who is fearful of retaliation will not make decisions based on the law. Our judges will be hesitant to make rulings against a party just because that party is represented by a Justice.
Indeed, some lower court judges will be more likely to rule in favor of a party because a Justice is representing that party.
Damaging the Public’s Confidence in the Courts
If the lower court judges make a ruling in favor of Ms. Zuni’s client, it creates a perception that the Tribal Court is favoring her client because she is a Justice on the Appellate Court.
Even if the Tribal Court is not actually favoring Ms. Zuni’s client, the perception of favoritism remains present because Ms. Zuni is a Justice. This damages the public’s confidence in our court system and it could create a serious political conflict. It also exposes our judicial system to unnecessary ridicule.
Hidden Conflicts of Interests
Pablo Padilla told the Council that Denise Zuni can just recuse herself from any case where her client is a party. Well, of course, she’ll recuse herself because she will be standing in front of the lower court and the Appellate Court fighting for her client.
The problem will be on cases where her client is not a party because her client can still be directly and immediately affected by those cases. When the Appellate Court makes a decision on a case, the decision becomes the law. It becomes a precedent. So, it is binding on the courts. These decisions can directly affect or apply to Ms. Zuni’s client.
Yet, Ms. Zuni will be able to hear those cases because her client is not a party.
So, even if Ms. Zuni “recuses” herself from cases where IPHA is a party, it is irrelevant because she is still in a position to improperly influence the outcome of cases that will directly and immediately affect her client. Also, it will be virtually impossible for the public to see these conflicts of interests because they are hidden.
Even if Ms. Zuni doesn’t do anything improper, the appearance of impropriety remains present.
Pablo Padilla’s advice to the Council is problematic. His advice plants seeds for future political conflicts.
Our Judges and Justices are already terrified of making rulings on cases involving the Council and Governor. Now, due to the amendment, our judges at the lower level will also be terrified of ruling on cases where Justices are representing a party.
Meanwhile, Tribal Members will have to worry about the lower court favoring a party because that party is represented by a lawyer who is also serving as a Justice.