IN THE HO-CHUNK NATION

FILED

IN THE HO-CHUNK NATION

TRL / SUPREME COURT

1JEC 04 Z015

IN THE

HO-CHUNK NATION SUPREME COURT

C

OCOURTSSI

In Re Amendment of the Ho-Chunk Nation Judicial Rules ofEthics

WHEREAS, on November 1, 1994, the Secretary of the Interior approved a successor

constitution for the Ho-Chunk Nation, formerly known as the Wisconsin Winnebago

Tribe;

WHEREAS, the Constitution of the Ho-Chunk Nation, art. VII, § 4 provides that

the judicial power of the Ho-Chunk Nation shall be vested in the Judiciary;

WHEREAS, the Constitution of the Ho-Chunk Nation, art. VII, § 7(b) authorizes

the Supreme Court of the Ho-Chunk Nation to establish written rules for the Judi

ciary;

WHEREAS, the Ho-Chunk Nation Judiciary Establishment & Organization Act, 1

HCC § 1.5c specifically directs the Supreme Court to develop and issue rules, which

must be made available to the public;

WHEREAS, the Supreme Court initially adopted the Ho-Chunk Nation Judicial

Rules of Ethics on January 22, 2000, and presently acknowledges the need to revise

such rules to address perceived shortcomings and anticipated circumstances warrant

ing further attention; and,

WHEREAS, the Judicial Rules of Ethics provide definitive guidance to judicial officers

and supplants the Ho-Chunk Nation Code of Ethics Act, pursuant to subsection lAd of

said legislation, in instances of conflict.

NOW, THEREFORE, BE IT ORDERED AND RESOLVED that the Supreme Court

of the Ho-Chunk Nation amends the Judicial Rules of Ethics, which are attached

hereto, effective December 4, 2015.

Hon. Todd R. Matha, Chief Justice

Per Curium

Page lof 1

HO-CHUNK NATION

JUDICIAL RULES OF ETHICS

I.

II.

III.

IV.

V.

VI.

VII.

Application

SEC.

1-1 Judges and Justices

1-2 Part Time Judges

1-3 Pro Tempore Judges

Honesty and Independence of the Tribal Judiciary

SEC.

2-1 Standard of Conduct

2-2 Separation of Power

Impropriety and the Appearance of Impropriety

SEC.

3-1 Compliance with Laws and Tradition

3-2 Judicial Influence

Diligence and Impartiality

SEC.

4-1 Standards

4-2 Conflict of Interest/Recusal

4-3 Alternative to Disqualification

Improvement of the Legal System

SEC.

5-1 Judicial Involvement

Extra-Judicial Activities Regulation

SEC.

6-1 Avocational Activities

6-2 Civil and Charitable Activities

6-3 Financial Activities

6-4 Extra-Judicial Appointments

Political Activities of Tribal Court Judges

SEC.

7-1 Political Conduct in General

7-2 Campaign Conduct

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HCN Rules of Judicial Ethics (12/04/15 revised)

I. Application

SEC.

1-1

Judges and Justices

This code applies to the following persons; anyone, whether or not a lawyer, who

is an officer of the Ho-Chunk Nation tribal judicial system and is performing

judicial functions as a judge or justice for the purpose of this code. All judges and

justices must comply with this code. All judges and justices also include those

whom they may appoint on a part time basis; a temporary basis, such as a pro

tempore, or a Traditional Court clan leader.

SEC.

1-2

Part Time Judges

A part time judge or justice is a judge/justice who serves on a continuing or

periodic basis, but is permitted by tribal law or custom to devote time to some

other profession or occupation. A part time judge or justice is:

A. Required to comply with this code unless otherwise exempted;

B. Should not practice law either as a lawyer or an advocate

1. In the tribal court on which he or she serves, and/or

2. In any court subject to the appellate jurisdiction of the tribal court

on which he or she serves.

C. Should not act as a lawyer or advocate in a proceeding in which she or he

has served or in any related proceeding.

SEC.

1-3

Pro Tempore Judges or Justices

A judge/justice pro tempore is a person who is appointed to act temporarily as a

judge/justice. A temporary judge or justice:

A. Is required to comply with this code unless otherwise exempted;

B. Should not appear as a lawyer or advocate in a proceeding in which he or

she has served as a judge or justice or in any related proceeding.

II. Honesty and Independence of the Tribal Judiciary

SEC.

2-1

Standard of Conduct

A tribal court judge or justice should uphold the integrity and independence of the

tribal judiciary. An independent and honorable tribal judiciary is essential to

justice in the tribal community. A tribal court judge or justice should help create

and maintain such a judiciary, in accordance with Ho-Chunk Nation customs and

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HCN Rules of Judicial Ethics (12/04/15 revised)

traditions and should observe high standards of conduct toward achieving this

goal.

SEC.

2-2

Separation of Power

A. A judge or justice should encourage a separation between the judicial

branch and other branches of the tribal government, and should avoid any

contact or duty that violates such a separation, pursuant to HCN Constitution,

Article III, Sections 2 and 3.

B. A judge or justice should not participate in legislative or executive

decision making except where such participation is in accordance with the

laws and Constitution of the Ho-Chunk Nation.

COMi’vIENT: Judges and justices would be allowed to participate in activities

that im’olve administrative responsibilities for the court such as seeking

legislative approval for budget appropriations and modifications. Judges and

justices may recommend a pro teinporejttdge or justice when the Legislature

is a party to the proceeding. A judge or justice may participate in legislative

or executive decision making when addressing matters that affect personnel

issues of cotirt employees.

III. Impropriety and the Appearance of Impropriety

SEC.

3-I

Compliance with Law and Traditions

A tribal court judge or justice should respect and comply with the law and

tradition of the Ho-Chunk Nation and should at all times act in a manner that

promotes public confidence in the honesty and impartiality of the tribal judiciary.

SEC.

3-2

Judicial Influence

A judge or justice should not allow family, social or other personal relationships

to influence his or her judicial conduct. The judge or justice should not attempt to

use his or her title or office to advance the private interests of others; nor should

he or she convey the impression that anyone has special influence on the judge or

justice.

IV. Diligence and Impartiality

SEC.

4-1

Standards

The judicial duties of a tribal judge or justice should take precedence over all

other activities. The judicial duties of the judge or justice include all the duties of

the office prescribed by tribal law, custom or tradition. In the performance of the

duties, the following standards apply:

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HCN Rules of Judicial Ethics (12/04/15 revised)

A. A tribal court judge or justice should adhere to the laws, customs and

traditions of the tribe. He or she should be unswayed by partisan interest,

public clamor, political pressure or fear of criticism, and should resist

influences on the court by other tribal officials, government officials, or

any others attempting to improperly influence the court.

B. A tribal judge or justice should be patient, dignified and courteous to

litigants, jurors, witnesses, lawyers, advocates and others with whom he or

she deals in his or her official capacity and should require similar conduct

of other persons in court proceedings, including court personnel who are

subject to the judge/justice’s direction and control.

C. A tribal court judge or justice should give to every person who is legally

interested in a proceeding, including his or her representative, a full right

to be heard according to tribal law and tradition. A judge or justice should

avoid all out-of-court or other communication with tribal officials, agents,

or others concerning a pending proceeding unless all parties to the

proceeding are present or represented. A judge or justice may, however,

obtain the advice of a disinterested expert on federal law, tribal law,

custom or tradition or on other sources of law applicable to a proceeding

before the court if the request for advice is limited to points of law or

tradition and does not involve the particular merits of the case. Ordinarily,

the parties should be given a reasonable opportunity to respond to the

information provided by the expert.

D. A tribal court judge or justice should maintain order in the court. He or she

should not interfere in proceedings except where necessary to protect the

rights of the parties. A tribal court judge or justice should not assume an

advocate role. Similarly, a judge or justice should rely on only those

procedures prescribed by the laws and customs of the tribe.

E. A tribal court judge or justice should dispose promptly of the business of

the court.

F. A tribal court judge or justice should not comment publicly on any

proceeding pending in court and should also prohibit other court personnel

from making such public comment.

Comment: Judges and justices should uphold the highest levels of

confidentiality, diligence and impartiality. Jttdges and justices shottid require

their coturt staff to uphold the same high standard. The HC’N Employment

Relations Act outlines the required general conduct of employees, which the

jttdges andjustices shottld require within the context of the tribaljudiciaiy.

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HCN Rules of Judicial Ethics (12/04/15 revised)

G. A tribal court judge or justice should diligently perform his or her

administrative responsibilities.

H. A tribal court judge or justice should initiate appropriate disciplinary

measures against a judge or lawyer for unprofessional conduct of which

the judge or justice may become aware.

Comment: A Professional Responsibility Complaint form should be filed by

the judge. See H’N S. Ct. Form 9.

SEC.

4-2

Conflict of Interest/Recusal

A. A judge or justice shall recuse himlherself in any matter before the court

in which he or she has a direct personal or financial interest pursuant to

HCN Constitution, Article VII, Section 13.

1. Direct Personal Interest is defined as, but not limited to the

following:

(a) An attorney/client relationship where the attorney has

represented someone in the same proceeding; or where the

relationship is an continuing one;

(b) The judge or justice has a personal bias or prejudice

concerning a party; or personal knowledge of disputed

evidentiary facts;

(c) Cases where the judge or justice’s spouse or immediate

family is a party to the proceeding, or the spouse is a lawyer

or advocate in the proceeding, or the spouse or immediate

family member has an interest that could be substantially

affected by the outcome of the proceeding or the spouse or

immediate family member is likely to be a material witness

in the proceeding.

Comment: HCN Code ofEthics defines ‘immediate family” as a)

an individual ‘s spouse; and b) an individual ‘s relative by

marriage, lineal descent or adoption who receives, directly or

indirectly, more than one-half of his or her support from the

individttal or from whom the individital receives, directly or

indirectly, more than one-half of his or her support; and c) any

person living in a spottsal relationship with another; and ci) a

son or daughter (including adopted children), brother, sister,

mother, father, grandmother, grandfather, grandson or

granddaughter.”

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HCN Rules of Judicial Ethics (12/04/15 revised)

2. Direct financial Interest is defined as, but not limited to the

following:

(a) The judge or justice knows that he or she individually has a

financial interest in the matter before the court.

(b) The judge or justice’s spouse has a financial interest in the

matter before the court.

Comment: A direct financial interest shalt be defined cis a

situation in which the jttdge or justice or spottse of the judge or

justice has a signflcant financial interest in the outcome of the

iizatter or wilt directly gain financial benefit from the matter.

Such financial interests shalt be recent in time.

B. A judge or justice may recuse himlherself on his or her own discretion to

avoid the appearance of impropriety;

Comment: The HC’N Rules of Appellate Procedure, Rute 4 alto’u’s judges and

jttstices to make a discretionary recusal.

C. At the judge or justice’s discretion, if there is a fact or issue that may

require a disclosure to prevent the appearance of impropriety, then that

information must be disclosed to the parties. If the parties do not respond

in the form of a Motion for Recusal, there is no basis for the judge or

justice to recuse.

Comment: A judge or jttstice may discern that certain facts or information

should be provided to the parties in a case to avoid an appearance of

impropriety. Examples are extended family relationships, attorney-client

relationships, working relationships and other miscellaneous situtations that

may raise an appearance of impropriety.

D. A judge or justice may be recused upon a Motion for Recusal to avoid the

appearance of impropriety.

Comment: Jttdges and justices wilt need to seriottsly consider recttsals.

However, ajttdge orjutstice should took to case law and the HCN Constitution

in determining whether recutsal is warranted. Such factors as remoteness in

time, the wishes of the parties and the level of impropriety may be considered

in making recitsat decisions.

V. Improvement of the Legal System

SEC.

6

5-1

Judicial Involvement

HCN Rules of Judicial Ethics (12/04/15 revised)

A tribal court judge or justice may engage in the following activities, if in doing

so, he or she does not cast doubt on his or her capacity to decide impartially any

issue that may come before the court:

A. The judge or justice may speak, write, lecture, teach and participate in

other activities concerning tribal law and custom, the legal system and the

administration ofjustice.

B. The judge or justice may appear at a public hearing before a tribal

executive or legislative body or official on matters concerning the tribal

legal system and the administration of justice, and he or she may

otherwise consult with a tribal executive or legislative body or official, but

only on matters concerning the general administration ofjustice.

C. The judge or justice may serve as a member, officer or director of an

organization or tribal government agency devoted to the improvement of

the legal system or the administration of justice. The judge or justice may

assist such an organization in raising funds and may participate in

management and investment. The judge or justice may make

recommendations to public and private fund-granting agencies on projects

and programs concerning the legal system and the administration of

justice.

VI. Extra-Judicial Activities

SEC.

6-1

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Regulation

Avocational Activities

A tribal judge or justice may write, lecture, teach and speak on non-legal subjects,

and engage in the arts, sports and other social and recreational activities, if these

activities do not interfere with the performance of his or her duties.

SEC.

6-2

Civil and Charitable Activities

A tribal judge or justice may participate in civic, charitable and other activities

that do not reflect upon his or her impartiality or interfere with the performance of

his or her judicial duties. A tribal judge or justice may participate in any

educational, religious, charitable or similar organization. A tribal judge or justice

should not participate if it is likely that the organization will be involved in

proceedings that would ordinarily come before him or her or will be involved in

the adversary proceedings in any tribal court.

SEC.

6-3

Financial Activities

A. A tribal judge or justice should avoid fmancial and business dealings that

tend to reflect adversely on his or her impartiality, interfere with the

performance of his or her judicial position or involve him or her in

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HCN Rules of Judicial Ethics (12/04/15 revised)

frequent transactions with lawyers or others likely to come before the

court on which he or she serves.

B. A tribal judge or justice may hold and manage investments and engage in

other activity for compensation, subject to these rules and other applicable

ethics rules of other jurisdictions. Additionally, a part-time judge or justice

may engage in the full-time practice of law concurrent to his or her

judicial duties.

Comment: A part-time judge or jttstice who is a licensed attorney may work

for a firm that is presently or was previottsly engaged in a business

relationship with the Ho-Chttnk Nation provided that he or she appropriately

and effectively insttlates him or herselffroin such business while working for

the firm. A fttll-time jttdge or justice may only engage in the practice of law,

including working in a firm, partnership or solo practice, while serving in a

jttdicial capacity for the Ho-Chunk Nation when sttch practice comports with

Sec. 4-1.

C. Except as allowed by the laws and traditions of the Ho-Chunk Nation,

neither a judge or justice nor a member of his or her family residing in the

household should accept a gift, bequest, favor or loan from anyone, which

would affect or appear to affect his or her impartiality in judicial

proceedings.

D. A judge or justice may accept compensation and reimbursement of

expenses for the law-related and extrajudicial activities permitted by these

rules, including activities that involve writing, lecturing, teaching and

speaking, if the source of the payment does not give appear to improperly

influence the judge or justice, subject to the following restrictions:

1. Compensation should not exceed a reasonable amount or exceed

what a person who is not a judge or justice would receive for the same

activity.

2. Expense reimbursement should be limited to the actual costs of

travel, food and lodging reasonably incurred by the judge or justice

and, where appropriate to the occasion, by his or her spouse or

relative. Any additional payment is compensation.

SEC.

6-4

Extra-Judicial Appointments

Unless allowed by Ho-Chunk Nation tribal law or tradition, a judge or justice

should not accept appointments to any Ho-Chunk Nation government entity that

is concerned with issues of fact or policy on matters other than the improvement

of law, the legal system or the administration of justice. However, a judge or

justice may represent the Ho-Chunk Nation during ceremonial occasions or in

connection with historical, educational or cultural activities.

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HCN Rules of Judicial Ethics (12/04/15 revised)

VIII.

Political Activities of Tribat Court Judges/Justices

SEC.

7-1

Political Conduct in General

Unless authorized by Ho-Chunk Nation tribal law or tradition, a judge or justice

should not engage in any tribal political activity except on behalf of measures to

improve the law, the tribal legal system or the administration ofjustice.

SEC.

7-2

Campaign Conduct

A candidate, including an incumbent judge or justice for a tribal judicial office

that is filled by tribal election:

A. Should maintain the dignity appropriate to judicial office and should

refrain from any political activity that might interfere with the

performance of his or her judicial duties. furthermore, a judge or justice

should encourage members of his or her family to adhere to the same

standards of political conduct.

Comment: See the definition of “immediate family” tinder Sec. 4-2 Comment

B. Should not make pledges or promises of conduct in judicial office other

than the faithful and impartial performance of the duties of the office and

not announce his or her views on disputed legal or political issues.

C. Should not actively campaign for another judge or justice in an election.

Comment: Jttdges ctnd jttstices are considered to be campaigning f they are

involved in a planned express action to elect a candidate. A judge orjttstice

who speaks ptthticly on behalf of a candidate orpttblicly endorses a candidate

would be violating this rttle. Judges and jttstices who are tribal members may

attend election foriuns and receive election information as a function of their

tribal citizenship. If the judge orjtistice is a candidate, they may participate in

speaking and campaigning publicly on their own behalf withoitt being in

violation of these rules.

D. Should maintain a high standard of impartiality while attending tribal

forums and area meetings during the campaign process.

Rules ofJudicial Ethics: originally adopted Jan. 22, 2000; restated and revised on Dec. 4, 2015, by the HoChunk Nation Supreme Court at the Ho-Chunk Nation Court Building, Wa Ehi Hoci, in Black River falls,

Wisconsin from within the sovereign lands of the Ho-Chunk Nation.

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HCN Rules of Judicial Ethics (12/04/15 revised)