Shawn Vincent BEST Sr., Appellant

Tribal code

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What actually matters in this document.

Text

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP14-003, 6 CTCR 23

12 CCAR 01

[Jay Manon, Attorney, for Appellant.

Sabrina Desautel & Curtis Slatina, Office of Prosecuting Attorney, for Appellee.

Trial Court Case No. CR-2013-36164/65]

Hearing September 19, 2014. Decided January 12, 2015.

Before Chief Justice Anita Dupris, Justice Rebecca M. Baker, and Justice R. John Sloan Jr.

Dupris, CJ

I. SUMMARY

Appellant was found guilty by a jury of three charges: Battery - Domestic Violence (CTLOC §§

3-1-4 and 5-5-54(b)(1)); Disobedience of a Lawful Court Order (CTLOC §§ 3-1-123, 5-5-101(b), and

5-5-54(b)(2)); and Stalking (CTLOC §§ 3-1-15 and 5-5-54(b)(1)) on September 13, 2013. He was

sentenced on November 7, 2013 to 900 days in jail with credit for 219 days already served. The jail

sentence was allocated as follows: 360 days for the Battery - Domestic Violence, of which 180 were a

mandatory minimum required under the Domestic Violence Code (CTLOC § 5-5-54); 360 days for the

Stalking, of which 90 days were a mandatory minimum required under the Domestic Violence Code, Id.;

and 180 days for the Disobedience of a Lawful Court Order (DLCO) , of which 45 days were a

mandatory minimum required under the Domestic Violence Code, Id.. The total mandatory minimum

days in jail, combined, are 315.

The trial judge entered a judgment and sentence which assessed the 315 as mandatory actual jail

time to be served. Appellant filed a timely appeal, challenging the verdict of guilty to the Stalking and

DLCO charges, as well as challenging the Trial Court’s interpretation of mandatory minimum to mean

actual time to be spent in jail. Oral Arguments were held on September 19, 2014.

At the Oral Arguments Appellant chose not to pursue the issue of whether he received adequate

notice of the Okanogan Court Restraining Order which formed the basis of the charge of DLCO in that

the Okanogan Court Order had adequate information to show he did receive such notice. The remaining

issues were (1) whether the evidence supported the jury finding of guilty on the charge of Stalking; and

(2) whether “mandatory minimum” jail sentence means actual jail time.1 For the reasons set out below

Appellant also asserted that the Trial Court erred in not giving an instruction on proving the domestic violence allegations by a preponderance

of the evidence, as required by the Code. See, CTC, section 5-5-54. He withdrew this objection after a review of the record revealed that the Trial

Court actually instructed the jury on the higher burden of proof: beyond a reasonable doubt, which was found to have been proven to the jury.

Colville Court of Appeals Reporter

12 CCAR ___

we affirm the conviction on the charge of Stalking, and reverse and remand the Trial Court’s finding that

“mandatory minimum” means actual time of incarceration required by the Code.

II. DISCUSSION

Standards of Review

The first issue regarding reviewing a jury’s finding of guilt raises questions of law and fact, and

the second issue is a question of law. Questions of law are reviewed de novo; mixed questions of law and

fact are reviewed de novo if it is in the interests of justice. See, CCT v. Naff, 2 CCAR 50 (1995) and its

progeny. We review both issues de novo.

Jury Verdict of Guilty on Stalking Charge

When reviewing a jury finding of guilty, we are guided by Pakootas v. CCT, 1 CCAR 65 (1993),

and Condon v. CCT, 3 CCAR 45 (1996). The standard is we will not reverse a jury verdict unless "after

reviewing the evidence in a light most favorable to the prosecution, no rational trier of fact could have

found the essential elements of a crime beyond a reasonable doubt." Condon, supra (cites omitted).

Appellant argued both insufficiency of evidence and that the victim was not credible because she

admitted on the stand that she had lied in her filings with the State Court when she attempted to get the

restraining order vacated. The elements of the crime of stalking, as set out in the Court’s jury instruction

#16 are:

“1.

That on or about the 5th through the 18th day of October 2012, the defendant

purposefully contacted Jacqueline Trevino; and,

The contact would have caused a reasonable person to fear bodily injury; and,

The defendant knew or should have know that Jacqueline Trevino would fear

bodily injury; and,

Jacqueline Trevino did in fact fear bodily injury; and,

That the contact occurred on the Agency Campus, Nespelem, Washington,

within the boundaries of the Colville Indian Reservation....”

The evidence presented to the jury on this issue is comprised of the testimony of Ms. Trevino,

one of Ms. Trevino’s co-workers, and Police Officer Delano, who identified Appellant’s voice on the

recorded messages submitted as evidence of the stalking. The jury had the evidence of Ms. Trevino’s

statements made to the State Court regarding her request to vacate the restraining order before it, and was

able to factor it into its decisions on credibility of the witness. A witness testified that Appellant showed

up at Ms. Trevino’s workplace during working hours, demanding to see her.

Ms. Trevino testified Appellant was contacting her and pressuring her to change her statements

to the State Court; and there were recorded messages which Appellant purported to make to Ms. Trevino

which could be considered as intimidating and harassing. Finally, Ms. Trevino testified that Appellant’s

Colville Court of Appeals Reporter

12 CCAR ___

behavior and contacts over the period of time set out in Jury Instruction 16 made her fear for her safety.

All this evidence was before the jury when it made its decision to convict Appellant of Stalking.

A review of the evidence in a light most favorable to the prosecution shows that a rational trier of

fact could find, beyond a reasonable doubt, that Appellant was guilty of the charge of Stalking. The

evidence also showed that Appellant and Ms. Trevino had been in a relationship with each other at least

at one time. The standard set out in Condon, supra, is met, and the conviction for Stalking should be

affirmed. We so hold.

Mandatory Minimum Sentence Does Not Mean Actual Jail Time

The record shows that the Judge believed “mandatory minimum” jail sentence meant that she

was required to direct Appellant to spend that much time in jail. The Trial Court did not give a reason for

this decision, and rested it on the statutory language which mandated the jail term to be imposed.

Appellant was given a cumulative sentence on all three (3) charges of 900 days, with credit for 219 days

already served, and a mandatory minimum of 315 days on all three charges. Appellant asserts that the

Trial Court did not consider whether any of the jail sentence’s mandatory minimum amounts were

subject to suspension.

Appellee asserts that the Legislative History of the Domestic Violence Code, CTC, Chapter 5-5,

substantiates its belief that “mandatory minimum” jail time meant actual time in jail. A review of the

Legislative History does not support this claim. First, legislative history is not statutory, and should only

be used if there is ambiguity in a word or phrase. See, eg., Exxon Mobil Oil Corp. v. Allapattah Services,

Inc. 545 U.S. 546 (2005). We have few cases in which we have relied on legislative history to support a

statutory interpretation. See, eg., Stead v. CCT, 2 CCAR 27 (1993), St. Peter v. CCT, 2 CCAR 2 (1993),

and Wiley v. CCT, 2 CCAR 60 (1995), all which reference the legislative history of the Indian Civil

Rights Act of 1968 (ICRA), 25 U.S.C. §§1301, et seq.. See, also, Rodriguez v. CCT, 9 CCAR 19 (2007)

(self-defense in domestic violence cases), and Davisson et al. v. CCT, 11 CCAR 13 (2002) (burdens of

proof required for domestic violence enhancements), both which reviewed the legislative history of the

Tribes’ Domestic Violence Code, CTC, Chapter 5-5. The last case in which we reviewed legislative

history was Pouley v. CCT, 4 CCAR 38 (1997), an enrollment case. Neither Rodriguez nor Davisson,

supra, addressed the issue of mandatory minimum sentencing.

CTC, § 2-1-76, Sentencing, states the judge “may suspend all or any part of the fine or sentence

imposed by him....” We have defined “sentence” as “an essential part of a judgment in a criminal case

which involves the legal consequences of a confession of guilt or a finding of guilt, punishment.... [It]

also means punishment consisting of a fine, a jail term, or both.” St. Peter v. CCT, 2 CCAR 2 (1993).

There is no specific finding in the legislative history of the Domestic Violence Code, CTC

Chapter 5-5, which states the CBC meant “mandatory minimum” to mean “actual jail time to be served.”

The Code is not ambiguous regarding the judge’s discretion in sentencing, within the limits set for each

criminal offense. We have already held that “sentence” means the punishment in a judgment which

includes a fine, jail time or both.

Colville Court of Appeals Reporter

12 CCAR ___

We have also recognized that the trial judge has broad discretion in sentencing a defendant,

within the limits set by the law, as dictated by the ICRA. See, eg., Coleman v. CCT, 2 CCAR 43 (1993) (“

[T]he trial judge has great discretion in determining the sentence of a defendant, provided that the trial

judge does not exceed the statutorial punishment limits of the statute in question.”); Coleman v. CCT, 2

CCAR 58 (1996) (“We decline to limit the Tribal Court's sentencing discretion absent legislative

direction in the applicable criminal statute to the contrary.”); and accord, Carson v. CCT, 5 CCAR 33

(2000) and Justus-Finley v. CCT, 7 CCAR 11 (2003). We will not unnecessarily restrict a trial judge’s

discretion to fashion a just sentence without explicit legislative direction to do so.

The CBC has enacted a comprehensive Domestic Violence Code. If it meant to restrict the

Court’s ability to sentence a defendant on a jail term, it would have stated so. We are mandated to read

the Code as a whole and to give it a reasonable interpretation; we are mandated not to legislate, and to

recognize the plain meaning of the words of the Code. We recognize that the CBC finds that domestic

violence cases should get heightened scrutiny. However, there is nothing in the Domestic Violence Code

which supports a finding that a defendant’s mandatory jail term was to be considered as only actual time

in jail. We so hold.

III. CONCLUSION

Based on the foregoing we AFFIRM the guilty verdict on the charge of Stalking. Further, we

REVERSE the Court’s finding that “mandatory minimum” means “actual time to be served,” and

REMAND for a sentencing hearing consistent with our ruling in this matter.

COLVILLE CONFEDERATED TRIBES, Appellant,

vs.

Jason M. PAKOOTAS, Appellee.

Case No. AP14-011, 6 CTCR 24

12 CCAR 04

[Wes Meyring, Office of Prosecuting Attorney, appeared for Appellant.

Dave Stevens, Office of Public Defender, appeared for Appellee.

Case No. CR-2013-36179]

Hearing September 19, 2014. Decision January 15, 2015.

Before Presiding Justice David C. Bonga, Justice Rebecca M. Baker and Justice R. John Sloan Jr.

Bonga, J

SUMMARY

Colville Court of Appeals Reporter

12 CCAR ___

On July 4, 2013 there was a motor vehicle accident on the Confederated Tribes of the Colville

Reservation’s Gold Lake Road involving Tribal members. Testimony was presented that Officer

Johnathon Knutson had been informed that alleged Appellee Pakootas was the driver and that alcohol

was involved. The accident resulted in suspected serious injuries to the driver and passengers who were

transported to the Coulee Community Hospital. Testimony of Officer Knutson also informed the Trial

Court that no other tests for alcohol consumption were given. Officer Knutson furt6her testified that he

was advised to have a Special Evidence Blood draw be administered, that was performed without a

warrant. On December 22, 2013 the Trial Court Granted the Defendant’s motion to suppress the

toxicology report without prejudice and this Appeal was timely filed.

Based o the reasoning below the Court of Appeals finds that the Trial Court was correct in

applying the facts and law before it in granting the Motion to Suppress and therefore the Appellate Court

AFFIRMS the decision granting the Motion to Suppress.

FACTS

The record as examined by the Appellate Court shows the following material facts in this matter:

There was a motor vehicle accident on the Confederated Tribes of the Colville

Reservation’s Gold Lake Road on July 4, 2013, involving Tribal members.

There were several officers dispatched to assist First Responders at the accident scene and

were at the accident scene at 20:33:01 and were joined by Officer Knutson.

Officer Knutson was identified as clearing the scene of the accident for the hospital at

20:49:17.

Jason Pakootas was believed to be the driver and that alcohol was involved.

Officer Knutson testified he was advised to be the Officer at the hospital on July 4, 2013.

Officer Knutson arrived at the hospital at 21:25:12. The Chief of Tribal Police Orr called

the officers at the scene at 21:47:24 hours to ask if any WSP support was required.

Officer Knutson was advised to do a Special Evidence Blood draw due to the extent of the

physical injuries to the vehicle occupants.

Officer Knutson testified he did have Jason Pakootas read and sign the Special Evidence

Warning.

Officer Knutson testified Blood was drawn from Jason Pakootas at 22:30 on July 4, 2013.

Officer Knutson testified he did not read the implied Consent Warnings for Blood.

10. Officer Knutson testified he did not tell Jason Pakootas he had the right to refuse the blood

test because he (Officer Knutson) did not believe Jason Pakootas had the right to refuse.

11. Officer Knutson testified he did not read the Washington State Implied Consent Warrant,

nor the Voluntary Blood/Urine/Breath provisions, nor any CTC Implied Consent Warnings

as he thought they were not necessary.

Colville Court of Appeals Reporter

12 CCAR ___

12. Officer Knutson testified he did not request the consent of Jason Pakootas for the blood

draw on July 4, 2013.

13. Officer Knutson testified he did not seek a warrant to draw blood from Jason Pakootas.

14. Officer Knutson testified other officers had been involved, including Officer Marchand.

15. Officer Knutson testified officer duties included interviewing victims, witnesses, taking

time sensitive pictures, measuring and accident reports.

16. Officer Knutson testified he had little experience with warrants and thought it too much

work to call for a warrant.

17. Officer Knutson testified cell phone coverage was sporadic between the accident scene on

Gold Lake Road and Coulee Medical Center.

The Appellate Panel, upon review of this case, would like to restate the desire that a trial court’s

Findings of Fact are written in such a manner that the facts are supported by the evidence in the record.

The Panel, reluctantly, instructs the judge at trial to write findings of fact and conclusions of law in such

a manner that one can know what the decision was based on. For example the Panel does not find it

helpful when Findings of Fact are stated in the manner of “so and so testified that...” instead of stating

something as an actual fact. As found in Black’s Law Dictionary, 8th Ed., p. 664:

Findings of Fact. A determination by a judge of a fact supported by the

evidence in the record usually presented at the trial or hearing. <he agreed with

the jury’s findings of fact that the driver did not stop before proceeding into

the intersection.>

STANDARD OF REVIEW

The Tribes have not challenged the Trial Court’s Findings of Fact. In Colville Confederated

Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 Ind.Lw.Rptr. 6059 (1995) this Court held that “A Trial

Court’s Findings of Fact are presumed to be correct and should not be set aside unless clearly erroneous.”

DISCUSSION

1. Did the Trial Court err by finding that the exigency did not exist to authorize a blood draw?

The material facts before us are undisputed and this Court after reviewing the facts does not find

any of the facts to be clearly erroneous. Exigent Circumstances may exist if (1) a person’s life or safety is

threatened; (2) a suspect’s escape is imminent, or (3) evidence is about to be removed or destroyed.

Black’s Law Dictionary, 8th Ed., pg. 260. The Appellate Panel has concluded that there was a lack of

evidence amounting to exigent circumstances, as there was insufficient effort made by the Tribes to

develop the facts to a degree that might have justified the circumstances as requiring immediate action.

This Court agrees with the position stated by Justice Sotomayer found in Missouri v. McNeely, 133 S.Ct.

1552 (2013) “...an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood

Colville Court of Appeals Reporter

12 CCAR ___

testing...must be determined case by case based on the totality of the circumstances” with sufficient

evidence of an emergency situation that could amount to exigent circumstances were not proven at trial.

Thus this record does not favor reversal.

2. Did the Trial Court err by exclusion of the Washington State Implied Consent Law in favor of the

Tribes’ own implied consent statute?

The decision by the Appellate Court does not reach the issue of whether or not the application of

Washington’s Implied Consent or the Tribes’ implied consent should be the rule. The Panel believes the

outcome would be the same as under McNeely that the totality of the circumstances does not support

exigent circumstances as the officer made no effort as he thought it as “too much work to call for a

warrant.” Thus the facts in this matter precludes the need to rule on the Implied Consent Law question

for this case.

It is therefore ORDERED that:

The decision of the trial court at the Motion to Suppress hearing is AFFIRMED. This matter is

remanded to the Trial Court for action consistent with this order.

COLVILLE CONFEDERATED TRIBES, Appellant,

vs,

Michael VINCENT, Appellee.

Case No. AP14-002, 6 CTCR 25

12 CCAR 07

[Curtis Slatina, Office of Prosecuting Attorney, appeared for Appellant.

Dave Stevens, Office of Public Defender, appeared for Appellee.

Trial Court Case No. CR-2013-36343]

Hearing November 21, 2014. Decided January 21, 2015.

Before Hon. Dennis L. Nelson, Hon. David C. Bonga, and Hon. Michael Taylor

Taylor, J

Proceedings Below

In December of 2013, a criminal Complaint containing three counts was filed in the trial court

against Appellee. The Complaint charged Appellee, in Count I, that Appellee committed “an act which

would be violative of federal criminal law or Washington criminal law” the possession of a firearm by a

convicted felon in violation of a Washington State statute RCW 9.41.040(2)(B), such act defined as a

tribal crime by CTC 3-1-231 punishable by 360 days in jail and/or a $5,000 fine. The Complaint

Colville Court of Appeals Reporter

12 CCAR ___

charged, in Count II, that Appellee committed “an act which would be violative of federal criminal law or

Washington criminal law” the possession of a firearm which had its serial number removed in violation

of a Washington State statute RCW 9.41.040, such act defined as a tribal crime by CTC 3-1-231

punishable by 360 days in jail and/or a $5,000 fine. The Complaint charged, in Count III, that Appellee

possessed drug paraphernalia in violation of CTC 3-1-181.

On December 23, 2013, Appellee filed a Motion to Dismiss Counts I and II of the criminal

Complaint arguing that a prior trial court, CCT v Jane, et al, 2 CTrR 31 (2001) held CTC 3-1-231 to be

contrary to the Colville Tribal Civil Rights Act, CTC 2-1-178. The Jane court found this statute denied a

defendant’s right to due process of law in that it suffered from “improper incorporation, lack of notice

and lack of prosecutorial standards.” Ibid. at 2.

On January 31, 2014, after briefing by Appellant and Appellee, the trial court here, in an eight

page opinion, granted Appellee’s Motion to Dismiss Counts I and II of the Complaint with prejudice

holding that CTC 3-1-231 is “void for vagueness.” CCT v Vincent, No. 2013-36343. On Appellant’s

Motion, the trial court dismissed Count III without prejudice to simplify the Appeal in this matter. Ibid.,

Order of February 4, 2014, CR-2013-36343.

A Notice of Appeal was filed February 6, 2014, and an initial hearing was held to determine

issues and establish a briefing schedule on March 21, 2014. The parties provided extensive briefing of

the issues, including additional briefing at the request of the Court. Oral Argument was heard on

November 21, 2014.

Issue on Appeal

While several issues were briefed by the parties, the central issue, which we decide today, is

whether CTC 3-1-231 is violative of the due process of law provisions of the Colville Tribal Civil Rights

Act, CTC 2-1-178, in that it is so vague that it denies the tribal community its right to know and

understand the criminal laws to which it is subject and/or provides enforcement and prosecuting

authorities with insufficient definition and certainty with regard to the laws they are obligated to enforce.

Standard of Review

The question of whether CTC 3-1-231 violates the due process provision of the Colville Tribal

Civil Rights Act, CTC 1-5-2(h), is an issue of law. Issues of law are reviewed de novo. Naff v CCT, 2

CCAR 50, 2 CTCR 8, 22 Ind. L. Rptr. 6032 (1995).

Incorporation of Foreign Law

In CCT v Wiley, 2 CCAR 60 (1995), this Court clearly defined for the Tribes the scope of the

power of the tribal legislature to incorporate the laws of other jurisdictions into tribal law. The Wiley

Court found that the adoption by the Business Council of most of the provisions of the Washington State

traffic code, including the criminal provisions, was appropriate, lawful and provided sufficient notice to

the tribal community of the law that governed their activities on the public road within the Reservation.

Colville Court of Appeals Reporter

12 CCAR ___

Importantly, the Wiley Court found that the incorporation of these traffic laws operated prospectively so

that the driving public could know that the current state traffic laws governed their behavior. However,

in doing so the Wiley Court could look to CTC 9.1.02 (now renumbered as CTC 3-3-2) in order to find

that the Business Council had the power to, and did, recognize that the state traffic laws would change

over time by amendment, addition, or deletion. Section 9.1.02 specifically provided (and CTC 3-3-2

continues to provide) that state traffic code amendments, deletions and additions became Colville law at

the time they occurred. Thus, it is clear to the community and to law enforcers what traffic law is to be

applied on the date an offense is alleged to have occurred.

This is not the case with CTC 3-1-231. There is no provision in the Colville Law and Order

Code that recognizes amendments, deletions, or additions that may occur in the federal or state criminal

law after the date that CTC 3-1-231 was enacted and incorporates those amendments into Colville law.

In the volumes of tribal law available to the Court, the legislative history of code sections amended or

added to the code subsequent to its original adoption in 1972, are annotated section with dates and

adopting resolution numbers. Section 3-1-231 has no such annotation so it can be assumed that it was

part of the original 1972 code. Moreover, whatever prior date for the enactment of CTC 3-1-231 is

postulated, it is at least arguable, that the felon in possession statues of the state and federal codes as they

appeared in 1972 (or at some other prior date) are in fact the applicable law available to the Colville

community and law enforcement when defining the offenses charged here. In oral argument Appellant

clearly stated that the Tribes charged Appellee under current (2013) state statutes and that this was an

assumption that had to be made.

The problem presented here is one of clarity and knowledge of the law to be applied. Basic

concepts of due process require that the community subject to the law must be able to ascertain with

certainty the law that the government may apply to them and that the government officials are not

permitted to select among a variable set of standards.

Due Process and Void for Vagueness

Appropriate and clear notice of the law to the tribal community and tribal officials is a keystone

of due process as defined in the law of the Colville Tribes. Lambert v CCT, 5 CTCR 34, 10 CCAR 52

(2011). CTC 3-1-231 by its language and the language of the other applicable provisions of the Colville

tribal code, establishes as tribal law two very broad bodies of criminal law, i.e., the criminal statutes of

Washington State and those of the United States. See: CTC 1-1-5. These bodies of criminal law may be

inconsistent, if not conflicting, on the same subject. See, for example, the federal and state statutes

dealing with the basic charges that are the subject of this appeal, a felon in possession of a firearm. See:

18 U.S.C. 922 (g) and RCW 9.41.040.

Where a statute prohibits certain behavior and provides a criminal penalty for violation, that

statute runs afoul of due process provisions like those in Colville Code or the Indian Civil Rights Act, 25

U.S.C. 1302, when the statute is so vague that the public cannot understand what conduct is prohibited

Colville Court of Appeals Reporter

12 CCAR ___

and/or law enforcement official, are not given specific instructions regarding what conduct is prohibited

and what is not.

However, the void for vagueness limitation on statutes should be used sparingly.

Schwartzmiller v Gardener, 752 F.2d 1341, 1364 (9th Circuit 1984).

Void for vagueness is concerned with defendant’s right to fair notice and adequate

warning that certain conduct runs afoul of the law. Gentite v State Bar of Nevada, 501 U.S. 1030,

1077-78 (1973). Moreover, courts are to give statutes with criminal penalties more scrutiny

under the void for vagueness evaluation. Forbes v Napolitano, 236 F. 3d 1009, 1011 (9th Circuit

2000).

Void for Vagueness on Its Face

Statues may be void for vagueness on their face or as applied. A statutes will not be void

on its face if it defines the offense with sufficient definitiveness that ordinary people can

understand what conduct is prohibited; and establish standards that permit police to enforce the

law in a non-arbitrary, non-discriminatory manner. Nunez v City of San Diego, 114 F, 3d 935,

940 (9th Circuit 1997).

“Among the most fundamental protections of due process is the principle that no one may

be required at peril of life, liberty or property to speculate as to the meaning of … statutes. All are

entitled to be informed as to what the State commands or forbids.” Cunney v Bd. of Trs. of Vill.

of Grand View, N.Y., 680 F.3d 612, 620 (2nd Circuit 2011).

A statute may be void for vagueness if it fails to provide people of ordinary intelligence

reasonable notice and opportunity to understand what conduct it prohibits. Hill v Colorado, 530

U.S. 703, 732 (2000); Thibodeau v Portuondo, 486 F.3d 61, 65 (2nd Circuit 2007). It may be void

if it authorizes or encourages discriminatory enforcement because it fails to provide explicit

standards for law enforcement officials. Graynerd v City of Rockford, 408 U.S. 104, 108-109

(1972).

Void for Vagueness as Applied

Appellee argues that this statute as applied should be struck down because the due process

clauses of the Colville Civil Rights Act CTC 2-1-178 and the federal Indian Civil Rights Act 25

U.S.C. 1302, et. seq. require that the statute be sufficiently clear so as not to cause persons of

common intelligence to guess at its meaning or to differ as to its application.

Here the tribal statute broadly sweeps together two very comprehensive bodies of criminal

law that in many areas overlap, with differing definitions and, thus, obligations imposed for the

same conduct. Such overlapping makes it difficult for the average person to be placed on notice

as to what conduct is prohibited and, also, often provides law enforcement with both a choice as

Colville Court of Appeals Reporter

12 CCAR ___

to what law to apply to a specific set of facts. CTC 3-2-231 does not give clear direction to tribal

authorities as to what law is to be applied to a specific set of facts.

In addition, the lack of a statutory direction as to the prospective or non-prospective

application of the federal and Washington State bodies of criminal law CTC 3-1-231 leaves both

the tribal community and tribal authorities without direction as to whether the Washington State

felon in possession statutes apply as they existed when the Colville code of laws was adopted

(1972) or as they existed when the offenses charged in this case took place (2013).

The “void for vagueness” violation of the due process provisions of tribal and federal civil

rights law must rarely be applied to strike down a tribal statute. However, in this circumstance,

the broad sweep of CTC 3-1-231 attempting to absorb two substantial bodies of law which

regularly differ, together with the lack of statutory direction regarding amendments and additions

to the federal and state bodies of criminal law leads us to find that this statute must be found to

violate due process both facially and as applied.

Appellant argues that this Court in CCT v Wiley, 2 CCAR 60 (1995) found that the

Washington State statutes proscribing driving while intoxicated absorbed by tribal statute into the

Colville Code by reference, now CTC 3-3-1, were found to be lawful and within constitution

power of the tribal legislature to enact. However, the tribal enactments reviewed by the Wiley

Court did not incorporate two overlapping bodies of traffic law into the Colville Code and

contained a provision that specifically provided for recognition of amendments and additions to

the state code. Now CTC 3-3-2.

We also note that legal counselors to the Tribes have been aware of the questionable

status of this statute for thirteen years. See: CTC v Jane, et. al., 2 CTrR31, CR-MN-2000-23985,

Nov. 29, 2001. A legislative solution to the concerns set out in this opinion and in the two prior

trial court opinions is available should the Tribes wish to absorb the criminal codes of other

jurisdictions.

ORDER

Based on the foregoing authorities and analysis, we AFFIRM the decision of the Trial

Court in this matter, and REMAND this matter to the Trial Court for further action on issues

unresolved herein by the decision of the Trial Court, consistent with this Opinion and Order.

Colville Court of Appeals Reporter

12 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellant/Cross Appellee,

vs.

Rose CONDON, Appellee/Cross Appellant.

Case No. AP14-027, 6 CTCR 26

12 CCAR 12

[Wes Meyring, Office of Prosecuting Attorney, appeared for Appellant/Cross-Appellee.

Dave Stevens, Office of Public Defender, appeared for Appellee/Cross-Appellant.

Trial Court Case No. CR-2014-37262]

Hearing held January 16, 2015. Decided February 2, 2015.

Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Mark W. Pouley

Dupris, CJ

This matter came before the Court of Appeals for an Initial Hearing on January 16, 2015.

Wes Meyring, Office of Prosecuting Attorney, appeared for Appellant-Cross Appellee. Dave

Stevens, Office of Public Defender, appeared for Appellee-Cross Appellant.

Three outcomes can happen at an Initial Hearing: 1) the Court may find that there are

sufficient grounds to proceed with a limited review of the record; 2) the Court may find that there

are sufficient grounds to find error and remand to the Trial Court for action; or 3) that there are

insufficient grounds to proceed with an appeal. The Court has found, in this instance, that there

are insufficient grounds to proceed with this appeal and remands to the Trial Court.

In this case, the Tribes filed a Criminal Complaint against Ms. Condon. A Motion for

Arrest Warrant and Corrections Hold was filed along with the Complaint. Approximately five (5)

weeks later, spokesperson for Ms. Condon filed a Motion to Dismiss with Prejudice for Violation

of Due Process Rights. The Court scheduled a motion hearing four (4) calendar days2 later, over

objection of the Tribes. Despite the short time frame, the Tribes managed to file an Answer to the

Motion. At the hearing the Court dismissed the matter, without prejudice, quashed the warrant and

removed the Corrections hold.

ABUSE OF DISCRETION

Appellant’s argument that the Trial Court abused its discretion and acted outside the

bounds of law by setting a hearing within five days of Defendant’s motion in violation of CTC

1-2-10 and over objection of the Tribes is without merit. CTC 1-2-10 clearly states that motions

“shall be filed and served on opposing party no later than five (5) days prior to the time specified

for the hearing, unless a different period is fixed by these rules, by order of the court or for good

Motion was filed 11/13/14, a Thursday, and the hearing was scheduled for Monday, 11/17/13.

Colville Court of Appeals Reporter

12 CCAR ___

cause shown.” This language clearly allows the Court to use it’s discretion to set motions hearings

for times that may better serve the parties and the Court’s schedule. The Appellant has failed to

show how the earlier time significantly prejudiced the Tribes.

The Tribes also argue that the Court made a decision on information that wasn’t fully

developed. Defendant’s counsel argued at the motion hearing that Ms. Condon was being held in a

State mental health facility but was not able to receive the recommended treatment because of the

Correction’s Hold. With the hold removed and the warrant quashed, she would be able to receive

the recommended treatment. The Tribes stated that this information was not presented in the form

of an affidavit or other written document and that since the motion hearing was scheduled so

quickly, they didn’t have time to verify the details of the alleged treatment requirements.

We have found in past cases, that before we will overturn for abuse of discretion, we must

find that the decision was manifestly unreasonable, exercised on untenable grounds, or for

untenable reasons. We did not find that the Court did that here.

One concern raised by the parties, and a reason for filing the appeals, is that the Trial

Court is ignoring the rules regarding filing motions, and the time frames for hearing such motions

ore often than necessary. This raises issues of procedural due process if the exception becomes the

rule without consideration of the reasonable expectations of the parties to having the protection of

the rules to follow.

It is well-known that the court rules for the Trial Court are sparse, and the only written

ones are what is found in the statutes, We note, although it does not affect our decision in this

case, that it is important that the Trial Court judges understand what the rules are and, unless there

is a reason to forego the rules, it protects all the parties interests in a case to follow the rule. Our

ruling herein is on this case specifically; it does not foreclose any further review of the issue in an

appropriate case

Appellant further asserted that the matter should not have been dismissed without

prejudice, but it has not shown prejudice for a dismissal without prejudice, In fact, Appellant has

no restrictions on when it can refile the charges other than the statute of limitations, We hold this

is not an appealable issue under the facts of this case.

DISMISSAL WITHOUT PREJUDICE

Appellee-Cross Appellant argues that the Court should have dismissed this action without

prejudice based on due process violations. In her argument to the Trial Court she claimed that she

was arrested for using her cousin’s debit card without authorization to do so. She was incarcerated

on Sept. 26, then attempted suicide on Sept. 27. The following Monday, Sept. 29, she was

examined by a health care professional who determined she was a danger to herself. She was

transported to Eastern State Hospital (ESH)that same day.

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12 CCAR ___

A few days later, the Tribes filed a motion to dismiss the citation, filed a criminal

complaint for Theft, and requested that Ms. Condon be evaluated at ESH. She would be returned

for arraignment within 72 hours after her evaluation. She was not appointed an attorney until two

weeks later. On Oct. 13, after her evaluation was complete, ESH petitioned for a 90-day

involuntary treatment hold. At the time of the motion hearing, she had been held for

approximately 53 days.

There are not enough facts decided on the merits in this case to review in order to

determine if the dismissal without prejudice violated any due process rights of the

appellee/cross-appellant. This request is premature. Appellee/Cross Appellant argues that she was

held beyond the statutory limit, but what we have in the facts are that she was being held, at least

a part of the time, on an involuntary commitment order from the State of Washington, This issue

is better raised on appeal once there has been a final judgment and order in this case For this

reason we find the Cross-Appeal on the issue of alleged violation of due process rights of the

defendant/Cross-Appellant should be dismissed.

CONCLUSION

Based on the foregoing, we hold that the Appeal and Cross-Appeal filed herein should be

dismissed and the matter remanded to the Trial Court for appropriate action. It is so ORDERED.

Colville Court of Appeals Reporter

12 CCAR ___

Ryan CATE, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP13-014, 6 CTCR 27,

12 CCAR 15

[Jeremy Stevens and Jonnie L. Bray, Office of the Public Defender, for Appellant/Cross-Appellee Ryan

Cate.

Curtis S. Slatina, Office of Prosecuting Attorney, for Appellee/Cross-Appellant Colville Confederated

Tribes.

Trial Court Case Number CR-2013-36022]

Hearing held June 20, 2014. Decided April 24, 2015.

Before: Presiding Justice Theresa M. Pouley, Justice Gary F. Bass, and Justice R. John Sloan Jr.

Bass, J.

This matter comes before the Court of Appeals (COA) on the appeal of the Appellant

from a verdict and judgment of guilty of the crime of Rape, and the cross-appeal of the Appellee.

ISSUES

1. Did the Trial Court err in not adopting and applying an implied bias rule in determining

whether a third cousin of the victim was disqualified from being a juror in this case?

2. Did the Trial Court err in finding no juror malfeasance for a member of the jury not

disclosing her relationship of being a third cousin to the Appellant during voir dire?

3. Was it misconduct of the prosecutor to mention the rape kit, or asking questions that

called for heresay answers?

4. Was inadmissible heresay admitted?

5. Did the Trial Court err in curtailing the testimony of Diego Garcia on the basis that the

testimony would be a violation of the Rape Shield Law?

6. Did the Trial Court err in giving the Appellant credit for the time served when he was

on Electronic Home Monitoring (EHM) on pretrial release?

SUMMARY

The charge of rape in this case arose after the alleged victim, V. L., and the Appellant had

been with a group of people at a bar named El Paraiso on New Year’s Eve and then they and the

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12 CCAR ___

others went to an after-hours party at a private home. The alleged rape took place at the private

home.

After the jury had rendered its verdict, the Appellant moved to vacate the jury verdict an

grant a new trial. There were two grounds for the motion, The first was because a juror and V. L.

were third cousins, and an implied bias rule should apply disqualifying that juror. The other basis

was that the juror allegedly failed to disclose her relationship to V. L.

During the trial, there were repeated references to a rape kit in questions by the

prosecutor. In addition, there were questions asked by the prosecutor of police officers that

Appellant contends called for answers that were heresay and inadmissible. Appellant contends

that this was prosecutorial misconduct.

The Appellant also alleges that heresay was admitted in the police officers’ testimony.

Appellant called as a witness Diego Garcia. The Trial Court curtailed the testimony of

Garcia about his interactions with V. L. at the home where the party took place and the alleged

rape took place. Appellant contends this was error.

The Trial Court entered a judgment and sentence after the jury rendered its verdict, The

Appellant was sentenced to 360 days in jail with none suspended. The sentence contained the

following:

“Defendant shall receive credit for the time served and good time is allowed per

the rules of the Correctional Facility. Upon service of 180 days in jail, the

Defendant may move the court to release him on Electronic Home Monitoring.

(EHM)”

The Appellee cross-appeals contending that the court erred in giving the Appellant credit for time

served on EHM while he was on pre-trial release.

STANDARD OF REVIEW

The issues are either questions of law which we review de novo, or mixed questions of

fact and law which are also reviewed de novo3.

ISSUES

1. The Trial Court did not err in not adopting and applying an implied bias rule in determining

whether a third cousin of the victim was disqualified from being a juror.

The Colville Tribes have not adopted an implied bias rule by ordinance. The Appellant

urged the Trial Court to adopt a rule of implied bias either as contained in Washington State law

in R.C.W. 4.44.170 and .180, or as contained in federal cases.

Naff v. CCT, 2 CCAR 50, 2 CTCR 08, 22 Ind.Lw.Rptr 6032 (1995); Pouley v. CCT, 4 CCAR 38 (1997).

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12 CCAR ___

Title 4 of the Revised Code of Washington which contains R.C.W. 4.44.170 and .180 is a

civil procedure law, and not a criminal procedures law. Title 10 of the R.C.W.s is the criminal

procedure law of the State of Washington and it does not contain an implied bias law. The

Washington State Constitution, Section 22, Rights of the Accused, provides for a right to an

impartial jury. All decision in criminal proceedings in Washington State implicating an impartial

jury are under the State Constitution or R.C.W. 2.16.110, not R.C.W. Title 44. Therefore

importation of a civil procedure rule from the State of Washington to a criminal proceeding in the

Colville Tribal Court where the State of Washington has not seen fit to include such a law in its

criminal procedure is inappropriate.

The Trial Court held a hearing on the motion by Appellant to vacate the verdict and order

a new trial. In the Findings of Fact, Conclusions of Law and Order Denying Motion to Vacate and

for New Trial dated July 12, 2013, in Findings of Fact 3, after hearing testimony with regard to

the relationship between the juror and V.L., found that they shared the same great grandparents,

not the same grandparents as alleged by the parties. The Court found that they were third cousins,

not first cousins if they shared the same grandparents. Attached hereto is a Table of

Consanguinity, which shows that they would be second cousins in the 6th degree of consanguinity

if they shared great grandparents. Therefore, both the parties and the Trial Court were incorrect in

the degree of consanguinity. Even if the Trial Court had imported the Washington State law with

regard to implied bias, there would not have been implied bias as R.C.W. 4.44.170 and .180 only

implies bias to the 4th degree of consanguinity.

The Appellant urged the Trial Court to adopt federal law with regard to implied bias. As

is pointed out in footnote 5 in the July 12, 2013 Order referred to above, the United States and

Washington constitutions are not binding on the Tribes .

The Tribes have their own jurisprudence with regard to an impartial jury . The Trial

Court in response to the motion to imply bias solely because of the degree of consanguinity

between the juror and V.L., in the Order Denying Motions for Judgment Notwithstanding Verdict

and Setting an Evidentiary Hearing dated June 27, 2013, in effect denied that motion. The Court

ruled that the relationship alone is insufficient to impeach the verdict, but set an evidentiary

hearing to determine whether there were facts that would establish bias. The Court ruled that an

implied bias rule is not appropriate for the Colville Tribes because of the realities of the

See State v. Fire, 145 Wn.2d 152 (2001) and State v. Elmore, 155 Wn.wd 758 (2005).

Tonasket v. CCT, 7 CCAR 40, 42 (2004)

CTLOC 1-5-2, 2-1-178.

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12 CCAR ___

Reservation community. Too many of the members of the Tribes are related to one another in

some way. The jury pool is limited to members of the Tribes 18 years and over7.

This Court agrees with the Trial Court that an implied bias rule should not be imported in

Colville Tribal law, and therefore there is not implied bias.

2. The Trial Court did not err in finding no juror malfeasance for a member of the jury not

disclosing her relationship of being a third cousin to the Appellant during voir dire.

The Trial Court held an evidentiary hearing to determine whether a juror had committed

malfeasance for not disclosing her relationship to V.L. The Court took testimony as set forth in

the Findings of Fact, Conclusions of Law, and Order Denying Motion to Vacate Verdict and for

New Trial dated July 12, 2013. The Appellant does not dispute the Findings of Fact, but asserts

that the Findings of Fact as found constitute juror malfeasance as a matter of law. After a de novo

review of the Findings of Fact and Conclusions of Law, we find that there was no juror

malfeasance and affirm the Trial Court on this issue.

3. The prosecutor did not commit prosecutorial misconduct by either mentioning the rape kit, or

by asking questions calling for heresay answers.

The prosecutor in questioning several of the witnesses mentioned the words “rape kit.” A

rape kit, as explained by one of the nurses who examined the alleged victim, contains the items

used to collect forensic evidence from the alleged victim and the alleged perpetrator. The

Appellant asserts that the prosecutor committed misconduct by mentioning the rape kit while

questioning witnesses, because the rape kit itself was not introduced into evidence. The Appellant

did not object to the questions at any time during the trial, nor raise it as an issue in post-trial

motions, and it only appears as an issue on appeal.

This court can decide, in its discretion, whether it will allow an appeal where the issue has

not been raised at the trial court . The rationale allowing appeals of issues that were not raised at

the trial court is based on defendants eith4er being pro se or represented by spokespersons who

are not law trained. Neither is present in this case. The appellant in this case was represented by

both a law trained attorney and a spokespersons who is very experienced in criminal law, having

been a prosecutor and public defender for many years in the trial court. By the issue not being

raised at the trial level the prosecutor and court are denied the ability to resolve the issue at that

level. This court exercises its discretion and denies consideration of the mention of the rape kit on

appeal.

CTLOC 1-1-220.

CCT v. Olney, 10 CCAR 75 (2011).

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12 CCAR ___

Likewise, the issue of prosecutorial misconduct with regard to the questions asked by the

prosecutor which allegedly called for heresay answers was not raised at the trial court level.

Therefore this court denies consideration. The issue of whether the answers were heresay is

addressed later in this opinion.

4. Inadmissible heresay was not admitted in the trial.

The Federal Rules of Evidence (FRE), limited to the admissibility of heresay and

impeachment evidence, are the current law of the Colville Tribes9. Heresay consists of statements

other than one made by the declarant while testifying at the trial offered as evidence to prove the

truth of the matter asserted.

The Appellant does not appeal on the basis fo heresay being admitted as such, but

asserted that the prosecutor repeatedly asked questions calling for heresay answers, and thus

committed prosecutorial misconduct. We have ruled on the prosecutorial misconduct issue earlier

in this opinion. After a review of the testimony of the trial this court does not find that heresay

was admitted, although the prosecutor did ask questions that called for heresay answers, which

may be improper depending on the context in which they are asked. The Appellant objected and

the court sustained the objections thereby not allowing the heresay questions.

Because of our ruling that no heresay was admitted, we do not address the issue of

testimonial versus non-testimonial evidence addressed in Crawford v. Washington10.

5. The Trial Court did not err in curtailing the testimony of Diego Garcia.

Mr. Garcia testified that while at El Paraiso, V.L. was there and that she was flirtatious

and seemed “good to go.” The prosecutor objected on the grounds of speculation, and the court

overruled the objection. Mr. Garcia next testified that V.L. came into the bathroom and she sat on

the sink with her leg up, and Mr. Garcia asked her to move her leg as it was blocking his way out

of the bathroom, as he was trying to leave the bathroom. The prosecutor made a motion in limine

to limit Mr. Garcia’s testimony as it referred to past sexual behavior which is barred by the Rape

Shield Law. An offer of proof was made by defense counsel that Mr. Garcia would testify that

V.L. tried to kiss him and grope him, and that he was able to get out of the bathroom only when a

Jordan Feldman came to the bathroom door. The court then ruled that Mr. Garcia could testify

that there was some flirtation but no graphic details. Mr. Garcia then testified he was in the

bathroom for five or ten minutes with the alleged victim, that he removed her leg and opened the

door. He also testified that her leg was on the door jamb in the bathroom.

Waters v. CCT, 3 CCAR 35 (1996).

541 U.S. 36 (2004).

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12 CCAR ___

The issue is whether Mr. Garcia’s testimony, which was not allowed in evidence, about

V.L. attempting to kiss him and grope him was prior sexual behavior. Sect6ion 3-1-21 of the

Colville Tribal Law and Order Code (CTLOC), commonly called the Rape Shield Law, reads:

“Evidence of the victim’s past sexual behavior including but not limited

to the victim’s marital history, divorce history, or general reputation

for promiscuity, non-chastity or sexual mores contrary to community

standards is inadmissible on the issue of credibility, and is inadmissible

to prove the victim’s consent...”

This is an issue of first impression in our court as to what constitutes past sexual behavior

as contained in CTLOC 3-1-21. No definition of that phrase is contained in the CTLOC. We

hereby adopt the following definition of past sexual behavior:

“Past sexual behavior means a volitional or non-volitional physical act

that the victim has performed for the purpose of sexual stimulation or

gratification of either the victim or another person or an act that is

sexual intercourse, deviate sexual intercourse or sexual contact, or an

attempt to engage in such an act, between the victim and another

person.”11

Mr. Garcia testified that at El Paraiso, V.L. had been flirtatious and “good to go.” He was

allowed to testify that at the home where the alleged rape took place, V.L. had entered the

bathroom while he was in the bathroom and told him that she loved him. He was not allowed to

testify that V.L. tried to kiss him and grope him. The issue we are called on to decide is whether

the testimony about V.L. trying to kiss and grope Mr. Garcia should have been admitted, or was

barred by the Rape Shield Law.

We hold that in the context in which the alleged actions by V.L. took place, they were

past sexual behavior. Kissing, depending on the context in which it took place, can be a volitional

physical act for the purpose of sexual stimulation. In the context in which the alleged attempt to

kiss was made, it would have been for the purpose of sexual stimulation.

The last part of this issue is whether the sexual behavior was past sexual behavior.

Appellant asserts that it was not past behavior because it happened shortly before the incident

with Mr. Cate, and should be controlled by the decision in State v. Jones, 168 Wn2d 713 (2010).

The Jones case was one in which the defendant was charged with rape. The victim testified that

the defendant put his hands around her neck and forcibly raped her. The Defendant made an offer

of proof that he would testify that the alleged victim and another female engaged in a nine hour

alcohol and cocaine fueled sex party in which the women danced for money and engaged in

State v. Baker, 679 N.W.2d 7, 10 (Iowa, 2004); State v. Wright, 776 P.2d 1294, 1297-98 (Or. Ct. App. (1989)).

Colville Court of Appeals Reporter

12 CCAR ___

consensual sex with all three (3) males. The trial court held that the testimony was barred by the

Rape Shield statute. The Washington Supreme Court held that the testimony should have been

allowed as the ruling violated his Sixth Amendment right to present a defense.

The facts of the Jones case, supra, are marked different than the facts in this case. In the

Jones case the whole defense consisted of the testimony of the defendant about the party. Without

that testimony, the defendant had no defense. The defendant in this case was allowed to testify

about his version of events in which he claimed consent, and thus could and did present his

defense. The defendant in this case was not presenting his defense. In this case the trial court

allowed Mr. Garcia to testify about everything but V.L.’s alleged attempt at kissing and groping

him. Mr. Garcia was not a witness to the alleged rape itself, and was not a participant in the acts

constitution the defense as was the defendant in the Jones case. The testimony of Mr. Garcia was

intended to show that because V.L. had attempted to kiss him and grope him that it would be more

likely that any sex the Appellant had with V.L. was consensual. That is exactly the type of

testimony the Rape Shield Law is intended to prevent. Even if it were true that V.L. attempted to

kiss Mr. Garcia and grope him, that would not mean that V.L. was ready to have sex with anyone.

It would only mean that V.L. was interested in having sex with Mr. Garcia.

We hold that on the facts of this case, the proffered testimony of Mr. Garcia was past

sexual behavior, which was barred by the Rape Shield Law, and the Trial Court was correct in

disallowing such testimony.

6. The Trial Court did not err in giving Appellant credit for the time served when he was on EHM

on pre-trial release.

Sentencing is with the “strict” discretion of the trial judge under the Tribal Code and case

law. A sentencing decision is subject to appeal only for a “manifest abuse of discretion.” It is clear

that the discrt6ion to impose jail time and or a fine is vested with the trial judge. This discretion

includes a judge’s discretion in providing for or not providing for credit for any detention prior to

trial. All decisions of this court have unwaveringly protected the discretion of the trial judge in

sentencing unless it is restricted by tribal code or constitution12. There has been no showing that

there has been a restriction of the trial court’s discretion by tribal code or constitution or of a

manifest abuse of discretion in this case. The granting of credit for time served on EHM on

pre-trial release is affirmed.

ORDER

CCT v. Buckman, 8 CCAR 101 (2006).

Colville Court of Appeals Reporter

12 CCAR ___

Finding no reversible error, we affirm the conviction and judgment, and remand to the

Trial Court for further action.

Colville Court of Appeals Reporter

12 CCAR ___

Nankayet FINLEY, Appellant,

vs.

Meghan FINLEY, Appellee.

Case No. AP14-018, 6 CTCR 28

12 CCAR 22

[Parker Parsons, Northwest Justice Project, for Appellant.

Appellee appeared pro se.

Trial Court Case No. CV-GD-2012-35146 and CV-CU-2012-35110]

Hearing held April 17, 2015. Decision entered April 27, 2015.

Before Presiding Justice Mark W. Pouley, Justice David C. Bonga and Justice Michael Taylor

Pouley, J

FACTS

The following facts are undisputed. C.F., was removed from the Appellant/mother’s care

by the State of Washington in June 2011. In July 2011 the child was placed with her great aunt,

the mother of Appellee and later transferred to the care of the Appellee in December 2011. On

April 26, 2012 the Colville Confederated Tribes accepted jurisdiction and a Minor in Need of

Care (“MINOC”) case was started in the Colville Tribal Court. While the MINOC case was

pending, the Appellee filed a third-party custody petition on May 7, 2012. As the MINOC and

custody cases were still pending, on June 18, 2012 the Appellee filed a guardianship petition. On

June 26, 2012 the trial court consolidated the custody and guardianship petitions. On July 3,

2012 the court issued a stay in the custody and guardianship matters because the MINOC case

was ongoing. The stay was lifted on August 7, 2013, presumably because the MINOC matter

was to close, but the record of that proceeding is not before this court.

On July 25, 2013 the trial court set a hearing on the guardianship/custody matter for

November 20, 2013. On November 19, 2013 the court rescheduled the hearing sua sponte, citing

the lack of an available judge on November 20. The hearing was rescheduled to January 8, 2014.

The record is unclear as to what occurred on January 8, 2014, but on January 21, 2014 the court

conducted a hearing at which Appellee appeared by phone and Appellant did not appear. The

court entered a default “custody” order, continuing placement of the child with Appellee. On

January 30, 2014 Appellee filed a motion for reconsideration, asking the court to enter an order of

guardianship. On February 7, 2014, apparently in response to Appellee’s motion, the court set a

hearing for April 1, 2014. On March 31, 2014 the Appellant/mother moved to continue the April

1, 2014 hearing, arguing she did not have proper notice. The Court continued the matter to May

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12 CCAR ___

20, 2014 and, in the absence of the Appellant, entered an order that stated only, “The Order of

1-22-14 is titled custody/Guardianship order.” The Appellant subsequently moved for an order

setting aside the default and setting the matter for reconsideration. On June 13, 2014 the court

granted Appellant’s motion and set the matter for July 28, 2014, entering a second written order

on June 26, 2014 stating the matter was “set for hearing/trial for guardianship” on July 28, 2014.13

All parties were present for the hearing on July 28, 2014. The court declined to take

evidence or testimony and summarily entered an order denying the Appellee’s May 20, 2014

motion for reconsideration.14 The order does address the Appellant’s motion to set aside the

default and reconsider the orders. This appeal follows that order.

DISCUSSION

The facts surrounding the notice given to the Appellant regarding the proceedings are

disputed and were the subject of much argument before this court. The record is frankly very

unclear on this issue, but resolution of this question is unnecessary to the decision of the court. A

brief explanation of the controversy and the court’s observations of the record are still

appropriate.

This court will not outline all the challenges to, or proof of notice given, to Appellant

throughout all of these proceedings.15 The most critical hearing in the series of activities was on

January 21, 2014. At this hearing the Court entered a default order granting “custody” to the

Appellee. The order indicated that Appellee was present by telephone and that “the respondents

were served and did not appear.” The record is silent as to how the court reached this conclusion.

Although the hearing was originally scheduled for January 8, 2014, and there is a certification that

a notice of hearing for that date was mailed to the Appellant16 the record is completely silent as to

how the matter was set for January 21, 2014 or the manner in which anyone was notified of the

hearing. Based on the record before us, the court is unable to say with certainty that Appellant

was notified of the January 21, 2014 hearing, or that she was notified that this hearing would be

her only opportunity to present evidence and challenge the custody petition as required by George

v. George, 1 CCAR 52 (1991) and Gallaher v. Foster, AP00-007 (July 23, 2002). It appears,

It is unclear why a second order was required on June 26, 2014, but it does indicate the purpose of the scheduled hearing.

While the order references the May 20 motion, it seems more likely the court was denying the Appellant’s motion for

reconsideration since the effect of the July 28, 2014 hearing was to affirm the original January 2014 custody order.

Appellant asserts failure of adequate notice at several stages during the proceedings. Appellee contested some of these facts and also

asserted Appellant was afforded adequate notice and opportunity to be heard in the MINOC case. This court does not consider the Appellant’s

notice or participation in the MINOC matter relevant in any way to the proceedings before the court here. Whether she was given adequate

notice of other hearings in this case is also not immediately relevant so the court did not attempt to resolve those challenges.

Colville Court of Appeals Reporter

12 CCAR ___

however, the trial court may have attempted to correct this error on June 13, 2014 by setting the

default aside and scheduling the matter for a “hearing/trial” on July 28. This may have cured

some questions of notice and due process, if the court subsequently conducted a proper hearing

and entered necessary findings and conclusions. Unfortunately, the record indicates that the court

did not accept any testimony or evidence at the July 28 hearing, instead summarily upholding the

findings and order entered January 21, 2014.

The petition for custody asserts as the only basis for custody that the “child was removed

and placed with me since December 2011.” If Appellant received proper service of the

complaint, this is the only factual basis upon which a default judgment could be entered. There

are no affidavits or exhibits in the record, and it appears the only evidence the trial court may have

received was testimony from the Appellee by phone on January 21, 2014. Appellee was not a

party to the MINOC case, although the child was placed in her care. Still, the court made

findings as to the Appellant’s participation in and progress made in the MINOC proceedings.

Although not designated a “finding” the court states in summary that the mother was “facing

charges in Federal Court.” The court found “the child has no parent capable of caring for her at

this time”, which is a conclusion not a finding, presumably based on evidence presented in the

MINOC case. The order is captioned a “Custody Order” and it orders that the minor child “shall

remain in the custody” Appellee.

While the order states the child will remain in appellee’s custody, it says nothing further

regarding critical elements of a custody order. Is the order permanent? Is the Appellee designated

as the child’s custodian for the purposes of tribal, state and federal statutes or, for instance,

enrolling the child in school and obtaining medical care? Though the Appellant/mother’s parental

rights were not terminated, the order places her right to visitation in the sole discretion of the

Appellee. Presumably these are some of the same issues that led the Appellee to move for

reconsideration and seek an order of guardianship, to which the court responded in the May 20,

2014 order that, “The Order of 1-22-2014 is titled Custody/Guardianship Order.” Unfortunately,

“titling” the order as one for guardianship does not resolve these questions, nor does it meet

statutory requirements.

CTC 5-1-161(b) requires petitions for guardianship “shall list in detail the present

conditions and circumstances which warrant the appointment of a guardian…” CTC 5-1-162

requires the court to conduct a hearing to determine the need to appoint a guardian, the party that

is most appropriately the guardian, and “Make an order appointing a guardian, setting forth the

scope of the guardian’s authority, whether or not security for his performance is to be required,

and the duration of such appointment.” CTC 5-1-165 requires an appointed guardian to take an

oath to faithfully perform her duties as guardian upon which the Court will issue letters of

There is substantial argument that the mailing address used by the court was incorrect so there is some question regarding the

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12 CCAR ___

guardianship outlining the authority of the guardian. CTC 5-1-169 grants a guardian powers and

duties, but does so only after letters of guardianship are issued. In this case, the only conditions

supporting a request for guardianship asserted in the petition are “abandonment”, falling short of

the statutory requirements of CTC 5-1-161(b), none of the subsequent orders address any of the

statutory mandates, and there is no evidence the Appellee took an oath of guardianship or that the

court ever issued letters of guardianship. In sum, there is no way this court can find a guardianship

of this minor child has been ordered.

When dealing with multiple proceedings regarding the health and safety of children,

especially when the children, the parents and some of the other parties are the same in all of the

cases, it becomes easy to let the cases overlap. It is important, however, to recognize that

MINOC, third-party custody, and guardianship proceedings have different legal and factual

criteria for review. The trial court must be mindful of these differences and consider only those

matters before it. Boozer v. Wilder, 9 CCAR 01, 5 CTCR 11, 34 Ind.Lw.Rptr 6023 (Jan. 3, 2007).

It is also critical that the action in which an order is entered has a sufficient record of facts to

support the decision and not improperly or inadvertently incorporate facts developed in another

proceeding. The January 21, 2014 order of “custody” suffers from many of these errors and

subsequent orders of the court only confuse the matter further. It appears that granting Appellee

“custody” of the minor child was the result of the court and Colville Family Services attempting

to reach permanency on behalf of the child in the MINOC case. This is an important and

necessary goal, but it must be accomplished in full compliance with the Colville Tribal Code and

after strict adherence to the due process rights of all parties. It also must be accomplished in a

manner that creates a sufficient record for review. This was not accomplished in the underlying

case. Remand to the trial court is the proper remedy when there is an inadequate record for

review, and there are legitimate questions as to notice to parties of important hearings and

pleadings. CCT v. Dogskin, 10 CCAR 45, 5 CTCR 31, 38 Ind.Lw.Rptr. 6021 (Feb. 28, 2011)

The matter is REMANDED to the trial court for further proceedings consistent with this

ruling. To that end, the Court and parties must clearly identify if the matter is proceeding as a

petition for third-party custody or guardianship, the parties must be afforded reasonable and

timely notice and opportunity to be heard and the Court must enter all appropriate orders, fully

supported by complete findings of fact and conclusions of law.

validity of that notice.

Colville Court of Appeals Reporter

12 CCAR ___

Shelly R. PRIEST, Appellant,

vs.

Ronda MARCHAND, Appellee.

Case No. AP15-003, 6 CTCR 29

12 CCAR 26

[Appellant appeared pro se.

Appellee appeared pro se.

Trial Court Case No. CV-CU-2014-37112]

Hearing held April 17, 2015. Decision made April 27, 2014.

Before Chief Justice Anita Dupris, Justice Gary F. Bass and Justice Theresa M. Pouley

Dupris, CJ

This matter came before the Court of Appeals for an Initial Hearing on April 17, 2015

before Chief Justice Dupris, Justice Bass and Justice Pouley. Appellant and Appellee appeared in

person and without representation.

The Court explained the purpose of an Initial Hearing and then Appellant was asked to

state what she believed were the issues to be considered in this matter. Appellee was given an

opportunity to respond. After these responses, the Court determined that this matter should be

remanded to the Trial Court for completion of the case. It became apparent to the Court that the

Trial Court did not complete two important procedures in this case: 1) the Trial Court entered a

custody order without articulating why it was in the best interest of the child to be removed from

her parent, pursuant to CTLOC 5-1-121; and 2) the Trial Court interviewed the minor off the

record. Further, the Trial Court appointed a new GAL without motion from the parties or

articulating why there was a need for a new report.

DISCUSSION

In Boozer v. Wilder, 9 CCAR 01, 5 CTCR 01, 34 Ind.Lw.Rptr 6023 (2007) this Court

stated:

Throughout these long arduous proceedings the Trial Court never

articulated the legal standards she was applying regarding the

placement of Minor in relation to either her father or her maternal

grandparents.

As a matter of law the Guardianship Statute does not preclude the Trial

Court from considering a third-party petition for guardianship when

Colville Court of Appeals Reporter

12 CCAR ___

there is a parent available, and basing its decision on whether the

parent is “fit.” It was appropriate for the Trial Judge to do so in this

case. What was not appropriate for the Trial Court to do in this case

was to treat it like a dependency, or an on-going custody case, once it

made its decision on the fitness of Minor’s only parent, Appellant

here. It went beyond the bounds of its authority when it did so... It does

not provide for a continuing jurisdiction over the way the fit parent

raises his child, including what religious instruction must be given, or

where the child can live. (Emphasis added)

CTLOC 5-1-125(c) states that the Tribal Court shall determine questions of law and fact.

In this case, the Trial Court entered a one-page order which granted custody to Appellee. There

were no findings of fact or conclusions of law entered. Without an adequate record being made,

this Court is severely hampered in making an informed review. We ruled, in a juvenile case, that

when intervention is sought, it is the Trial Court’s duty to make a complete record of why the

intrusion is made and to make a complete record of why the disposition is necessary, as supported

by the record. Weber v. CFS, 8 CCAR 32, 4 CTCR 23, 32 Ind.Lw.Rptr. 6139. While this case is a

civil custody, when a court removes a child from its biological parents, that court should make

sure that the law and evidence clearly show it was in the best interests of the child to be removed.

This was not done in this case. There were no findings of fact or conclusions of law entered by the

Trial Court. “Best interests of the child” was not entered on the order.

It was further brought to the attention of this Court that the Trial Judge interviewed the

minor in chambers, off the record17. In George v. George, 1 CCAR 52, 1 CTCR 53 (1991)this

Court ruled:

Given the Tribal Court’s routine practice of tape recording all other

aspects of civil proceedings, CTC 13.4.13(1)18 makes a verbatim

record mandatory with respect to the Court’s interview in chambers of

a child in a child custody proceeding.

Order From Motion Hearing, file stamped February 3, 2015.

Now: 5-1-124, Child Custody-Interview with Child by Court-Advice of Professional Personnel. (a) The Tribal Court may interview the child

in chambers to ascertain the child’s wishes as to his or her custodian and as to visitation privileges. The Tribal Court may permit counsel to be

present at the interview. The Tribal Court shall cause a record of the interview to be made and to be made part of the record of the case.

(Emphasis added)

Colville Court of Appeals Reporter

12 CCAR ___

In the absence of a verbatim record of Kelly’s interview by the Trial

Court chambers, the record is inadequate for review purposes. Basic

due process concepts dictate that the only remedy for an inadequate

record is reversal and remand for a trial de novo to give the Trial

Court an opportunity to make a reviewable record. (Emphasis added)

The Appellant is challenging the Trial Court’s decision to appoint a new GAL. A GAL

report was in the record, was apparently accepted by the Trial Court, and no written explanation

was given to the parties as to why a new GAL should be appointed. CTLOC 5-1-124(b) allows for

the appointment of a professional personnel or persons knowledgeable in the welfare of Indian

children to give the court advice. It appears that a GAL had already been appointed and a report

submitted. It is unclear from the record why a new GAL was necessary. Without written findings

it is difficult to review the record. The Court certainly has the discretion to appoint a new GAL,

but should put its reasoning why in written form so that the parties can better decide whether it is

necessary to challenge the decision or not.

Appellee argued for dismissal of this matter as there hasn’t been a final order entered. Her

motion was denied, the Order From Motion Hearing meets the requirements for final order for

issues on appeal.

CONCLUSION

A review of the record in this matter showed a lack of information concerning findings of

fact and conclusions of law which directed the judge to make the decision that he made. It appears

that an interview of the minor was done off the record which may have contributed to the judge’s

final decision, or not. It is unclear. An adequate review of the record can not be accomplished

until there is a more complete record.

ORDER

This matter is remanded to the Trial Court for completion of the record. The Trial Court is

ordered to submit a new order which includes findings of fact and conclusions of law concerning

the award of custody and appointment of a new GAL. The Trial Court has thirty (30) days to

comply.

Colville Court of Appeals Reporter

12 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellant,

vs.

Harry BESSETTE, Appellee.

Case No. AP14-014, 6 CTCR 30

12 CCAR 29

[Chaitna Sinha, Office of Reservation Attorney, for Appellant.

Mark Carroll, Attorney at Law, for Appellee.

Trial Court Case No. CV-OC-2013-36075]

Hearing held November 21, 2014. Decision entered June 17, 2015.

Before Hon. Theresa M. Pouley, Hon. Rebecca M. Baker, and Hon. David C. Bonga

Pouley, J.

SUMMARY

The Appellee Harry Bessette was dismissed from his position as a TERO Compliance

Officer for the Tribes after he received a fourth Employee Warning Notice within one year. The

first three were addressed on October 26, 2012. These were issued for two incidences of

unauthorized decision making and one for improper use of his position. He was also issued an

Employee Corrective Action Plan in lieu of dismissal. Under its terms, if he failed to comply

with the corrective action plan, he could be dismissed. It was effective until January 25, 2013.

In December, Mr. Bessette was issued a fourth Employee Warning Notice for improper use of his

position. In December of 2012, he was dismissed and appealed to the Administrative Law Judge

on December 21, 2012.

The Administrative Law Judge upheld his termination on March 14,

2013 on a motion for Judgment on the pleadings. Mr. Bessette appealed under the Colville

Tribes Administrative Procedures Act.19 The trial court reversed and remanded to the

Administrative Law Court on April 4, 2014. This Appeal was filed by the Colville Tribes on May

2, 2014. Based on the reasoning below, the Court of Appeals finds that the trial court was

correct in applying the facts and law before it and therefore AFFIRMS the decision of the trial

court and remands this case to the trial court for action consistent with this opinion.

STANDARD OF REVIEW

The issues in this matter are primarily legal issues concerning the interpretation of the

Tribes Employee Policy Manual and thus the trial court’s determination is subject to de novo

CTC 2-4-19 and 2-4-20.

Colville Court of Appeals Reporter

12 CCAR ___

review by the this Court. CCT v. Naff, 2 CTCR 08, 22 ILR 6032 (1995); Finley v. CTSC, 8 CCAR

38 (2006).

ISSUES

1. Did the trial court err in reversing the decision of the Administrative Law Judge

(ALJ) for failing to articulate a standard for review of the motion and erroneously

applying the doctrine of sovereign immunity?

2. Did the trial court err in affirming the authority of the Administrative Law Judge to

grant a judgment on the pleadings without a hearing?

DISCUSSION

1. Did the trial court err when it reversed the Decision of the

Administrative Law Judge dismissing the appeal?

The central argument of the Appellant is that the ALJ decision was correct in not allowing

review of the warning notices that led to the termination of the Appellee and that sovereign

immunity and separation of powers bars the ALJ from reviewing the employee warning notices.

The trial court disagreed and reversed the decision of the ALJ. This court agrees with the trial

court that the decision of the ALJ failed to articulate a standard of review and incorrectly denied

review of the substantive issues regarding the employee warning notices which resulted in his

dismissal.

The primary argument of Appellant is that employee warning notices under the Tribes

Employment policy manual are not reviewable. The Appellant argues that sovereign immunity

and separation of powers bars the review by the ALJ, the trial court and this Court. Sovereign

immunity waivers must be clear and will not be implied by the Court. CTEC v. Orr, 4 CCAR 1

(1998). The Colville Tribes Employee Policy Manual specifically states that “Nothing in the

manual constitutes a waiver of the Colville Tribes sovereign immunity.

Certain limited

remedies may be specifically provided for in this manual. “ Employee Policy Manuel (EPM)

(I)(i). Whether the Tribes waived its sovereign immunity is not relevant to this case because the

EPM both grants and acknowledges remedies provided to employees for dismissal. The remedies

sought by Appellee are precisely the kind of remedies that are available to an employee who has

been dismissed from employment.

All regular employees have a right to appeal “only a dismissal or a reduction in pay”

under certain requirements. EPM (D)(emphasis in the original).

Colville Court of Appeals Reporter

The EPM identifies the

12 CCAR ___

process for an appeal of a dismissal to the ALJ, provides remedies available to the ALJ and

standards of review. The EPM also provides and allows for judicial review of the final agency

action under the Colville Administrative Procedures Act. CTC 2-4, et.seq. Appellee properly

appealed his dismissal under the EPM to the ALJ. Then Appellee properly appealed to the

Colville Tribal Court under the Colville Administrative Procedures Act. These actions are

specifically authorized by tribal law and thus neither separation of powers nor sovereign immunity

bars these claims.

The trial court reversed the ruling of the ALJ for two reasons finding the decision was

arbitrary and capricious. First because the ALJ failed to state a standard of review including a

failure to provide a link between the facts and the decision made and second because the ALJ

relied on an error of law by not reviewing a dismissal which was based on warning notices.

Appellant asks this court to extend sovereign immunity to dictate what particular actions resulting

in dismissal can be reviewed. In particular, the Appellant argues that the Employee Warning

Notices (EWN) which are the stated reason for the dismissal cannot be reviewed. This Court

agrees with the trial court: “An appeal for a dismissal is not merely meant to question whether the

EPM provided for dismissal, or that the EWNs were issued in the timeframes required. Rather an

appeal necessarily extends to whether an EWN was properly issued, which includes whether there

was a proper factual basis for its issuance in the first place.” Tr. Ct. Op. at page 7. Thus, on

remand the ALJ should consider all stated reasons for dismissal under the standards identified in

the EPM.

The Appellant next argues that allowing review of Employee Warning Notices would

cause the court to be “inundated with appeals” and would “eviscerate the Tribe’s ability to

manage its own employees, and day to day operations of the Tribe”. The Court is sympathetic to

the Tribes concern. To be clear, the holding in this case does not create new review of EWNs or

change review standards under the EPM. This Court holds that review of an employee dismissal

necessarily includes whether there was a proper factual basis for the actions that resulted in the

dismissal. However, that review is limited to whether by “clear and convincing evidence . . . that

the action being appealed was improperly implemented.” EPM D.8. The court neither expands

nor limits any review of EWNs that are not related to the reviewable issue of dismissal.

2. Did the trial court err in affirming the authority of the

Administrative Law Judge to grant a judgment on the pleadings

without a hearing?

The Appellee argues that the ALJ erred in entertaining and granting a motion for

judgment on the pleadings. The Appellee claims that denying him a hearing on the matter, and

instead allowing for a judgment on the pleadings, denies him due process under the EPM.

Colville Court of Appeals Reporter

12 CCAR ___

Instead of a hearing with witnesses, Appellee was served a motion for judgment on the pleadings.

Appellee was granted an opportunity to reply and he did reply. Then the ALJ made a ruling on

the legal issues without oral argument. This, it is claimed, violated his right to due process.

This Court continues to hold that “Due process is that which is due; notice and the

opportunity to be heard.” Wilson v. Gilliland, 8 CCAR 64, 67 (2006); Swan v. Colville Business

Council, 1 CtrR 3, 4 (Colv. Tr. Ct. 1992). It has been well established in other courts that oral

argument is not required for a litigant to receive due process. In re Amendment of Rule 3, 440

F.2d 847 (9th Cir. 1970). This Court holds that what is required in every case, however, is that

the parties must receive an opportunity to present their position before a competent tribunal. See,

Johnson v. Horizon Fisheries, LLC, 148 Wn.App. 628 (2009), quoting, Hanson v. Shim, 87

Wn.App. 538, 551 (1997). In this case, Mr. Bessette was provided notice of the motion for

judgment on the pleadings, had an opportunity to reply, he did reply and the ALJ decided the

issues on the basis of the briefing submitted. This meets the requirements of due process.

This Court affirms the trial court’s decision that a motion for judgment on the pleadings

in this matter was not in error.

ORDER

It is therefore ORDERED that:

1. The decision of the trial court is AFFIRMED.

2. This matter is remanded to the trial court for further action consistent with this opinion.

Franklin LAMBERT, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP14-019, 6 CTCR 31

12 CCAR 32

[Dave Stevens, Office of Public Defender, for Appellant.

Wes Meyring, Office of Prosecuting Attorney, for Appellee.

Trial Court case number CR-2014-37085]

Oral Argument held May 15, 2015. Decided September 14, 2015.

Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Michael Taylor

Taylor, J. for the Panel

Colville Court of Appeals Reporter

12 CCAR ___

SUMMARY OF TRIAL COURT PROCEEDINGS

Appellant was arrested on April 17, 2014, for Rape. Appellant was charged by Criminal

Complaint in April 21, 2014, with the crimes of Rape of a Child, CTC § 3-1-11, and Indecent

Liberties. Appellant was arraigned the same day. The Complaint alleged that the crimes

charged were committed on the “16th day of April through the 17th day of April 2014.” The

Indecent Liberties charge was later dismissed.

At arraignment, bail was set at $5,000.00 and Appellant was advised of his right to a

speedy trial. Trial was set for June 12, 2014.

On June 2, 2014, on motion of the prosecution, and over the objection of Appellant, trial

was reset for June 19, 2014. The prosecution’s motion for continuance included a request to the

Trial Court for a reduction in bail so that Appellant could be released pending trial. Neither

Appellant nor the Trial Court took any action on the request to reduce bail. Appellant remained

in custody.

At the pretrial hearing on June 16, 2014, over Appellant’s objection, the Trial Court

continued the trial to July 10, 2014. On June 27, 2014, the Trial Court put on the record the

reasons for resetting the trial date. July 10, 2014, was twenty (20) days beyond the required

speedy trial date set by the Tribal Code for a defendant in custody. The Trial Court found that,

although Appellant had asserted his right to a speedy trial, rescheduling of the trial was required

because of court scheduling and found that Appellant was not prejudiced by the continuance

beyond the sixty (60) day limitation set out in the Colville Tribal Code, CTC § 2-1-102(d).

Appellant objected to the continuance and the findings of the Trial Court. The trial actually

began on July 8, 2014, eighteen (18) days beyond the statutory limit.

At trial the Trial Court found that Rape of a Child, or Statutory Rape, with which

Appellant was charged, is a “strict liability” crime. As a result, Appellant was prohibited from

introducing evidence that at the time his alleged sexual contact with the minor occurred he had a

good faith belief that she was older than the statutory age that caused Appellant to be criminally

culpable for his actions. A jury instruction proposed by Appellant which would have supported a

justified mistake of age defense was also not allowed by the Court.

On July 8, 2014, the prosecution filed an amended complaint which changed the original

complaint that stated the sexual contact had taken place on the “16th day of April through the 17th

day of April, 2014,” to a new complaint that alleged sexual contact occurred “on or about the 16th

day of April, 2014.” The Trial Court found no substantial rights of Appellant were affected and,

over the objections of Appellant, granted the prosecution’s Motion to Amend.

Because a jury could not be seated from the first panel of jurors, the jury that eventually

heard and convicted Appellant was the second panel drawn for the trial. The trial judge

conducted the initial voir dire of the second jury panel. Defense counsel then questioned the

prospective jurors and objected when the prosecution questioned prospective jurors regarding

Colville Court of Appeals Reporter

12 CCAR ___

their attitudes toward the crime of Rape. Appellant was not permitted by the Trial Court to

conduct a rebuttal voir dire to the prosecution’s questions regarding rape and Appellant objected

to the limitation.

The panel has received and considered the record in this matter, including the audio

recording of the voir dire and empaneling of the jury. Each of Appellant’s objections to the

manner of the conduct of his trial is considered below.

RAPE AND STRICT LIABILITY

Appellant argues for reversal of his conviction on the ground that he was not allowed to

present, as a defense to the Rape of a Child, or Statutory Rape, charge, that he was justifiably

mistaken as to the age of the victim. The Trial Court found that the Statutory Rape charge

requires a strict liability analysis which excludes the defense of justifiable mistake in age.

Appellant raises two arguments. First, that the Colville Tribal Code does not specifically

exclude such a defense, and second, Washington State law, by statute, now allows the defense of

justifiable mistake as to the age of the victim.

When Colville tribal law does not include code provisions or common (case) law on an

issue the Tribal Code, at CTS § 1-2-11, directs us to rely next on state common law to resolve the

issue. Here the majority state common law rule with regard to the defense of mistake of age in

statutory rape prosecutions is that, as a strict liability crime, such a defense is not allowed. Celis v.

State, 416 S.W.3d 419 (Tex.Crim.App. 2013); State v. Martinez, 52 P.3d 1276 (Utah 2002).

In addition, the Colville Business Council last reviewed and amended the Tribal Code

provisions dealing with rape and defenses to a charge of rape in the year 2004. Congress added

this mistake defense to the U.S. Code in 1986. 18 U.S.C. § 2243(c)(1), P. L. 654, § 2, November

14, 1986, 100 Stat. 3661. The Washington State legislature, in 1988, visited the state provisions

dealing with Rape of a Child and defenses thereto, and added to the Washington Code, defenses

based on justifiable belief that the child victim was of an age beyond that which would cause any

sexual contact to be criminally culpable. We presume that the Colville Business Council was

aware that such a defense was available under federal and state law and chose not to include it in

tribal law. We hold that statutory rape is a strict liability crime.

SPEEDY TRIAL

Appellant was charged by criminal complaint and arraigned on April 21, 2014. Bail was

set at $5,000.00 cash. Appellant never posted bail and was held in custody until trial. Because

Appellant was in custody his last date for trial under the 60 day speedy trial requirements of the

Colville Tribal Code, CTC § 2-1-102(d) was June 20, 2014. On June 2, 2014, the Court, with

agreement by the parties, set a trial date of June 19, 2014.

Colville Court of Appeals Reporter

12 CCAR ___

On June 16, at the pre-trial hearing the Court, on its own motion, and over the objection

of Appellant, set trial for July 10, 2014, citing Court scheduling and docket congestion. On June

27, 2014, the Court entered into the record the following findings:

1. Delay of the trial was due to court scheduling.

2. Appellant had continually asserted his right to speedy trial under tribal law.

3. Delay would not prejudice the Appellant or his defense.

Appellant objected to these findings.

The trial actually took place on July 8, 2014, some eighteen days past the trial date set out

in the Colville (in custody) Speedy Trial Rule. Appellant argues for dismissal of his conviction

on the ground that he was denied his right to due process20 because his trial took place eighteen

days beyond the date he was entitled to be tried under CTC § 2-1-102(d). Appellant argues that

the first provisions of CTC § 2-1-102 governing time for trial for out of custody defendants, which

permit the Court to extend trial dates beyond the statutory time limit “for cause or at request of the

defendant,” show that the 60 day limit in CTC § 2-1-102(d), which contains no such language

allowing for extension by the Court, is absolute, and in this case, requires dismissal of Appellant’s

conviction. However, as we set out below, we find that the provisions of CTC § 2-1-102(d), the

ICRA and the CTCRA, with regard to speedy trial requirements, are somewhat flexible and

subject to both a preliminary review of the length of time beyond the statutory time limit and a

balancing test.

A majority of the state legislatures (44) and Congress have enacted some version of the

speedy trial requirement as a statute or court rule21. There is, therefore, a plethora of state22 and

federal common (case) law on the meaning of the federal and state constitutional, statutory and

court rule speedy trial requirements.

In resolving the various contradictions regarding these rules, both the state and federal

courts tend to base their analysis on the decision of the United States Supreme Court opinion in

Barker v. Wingo, 407 U.S. 514 (1972). In Barker the Court announced a four part “balancing

test” to determine whether the Sixth Amendment right to a speedy trial had been violated when

the length of time beyond the statutory date upon which trial is required to be conducted is long

enough to be found “presumptively prejudicial.” It is not surprising then, that our Court, in

See: Indian Civil Rights Act, 25 U.S.C. § 1302(a)(6); Colville Civil Rights Act § 1-5-2(f).

See generally, Susan Herman, The Right To Speedy and Public Trial, 161-167 (2006).

CTC 1-2-11 directs that the Courts of the Colville Tribes, when Colville law is unavailable, look to "state common" law.

Therefore, issues raised on appeal, which cannot be resolved by established Colville law, are to be resolved by a review of the common law as

developed by the courts of the states and not by the common law of any single state.

Colville Court of Appeals Reporter

12 CCAR ___

confronting claims that a Colville statute required dismissal of a criminal conviction for failure to

sentence within 60 days of a guilty plea, looked to Barker v Wingo for analysis of the claims.

In Stensgar v. Colville Confederated Tribes, 2 CCAR 20, 1 CTCR 76, 20 ILR 6151

(1993) the Court found that an eighteen day delay beyond the 60 day limitation set out in a tribal

statute requiring the Court to issue a sentence after the presenting to the Court of a guilty plea was

subject to a Barker analysis. While the Stensgar Court specifically did not approve of the trial

court’s action in going beyond the 60 day limitation set out in the statute, it did find that the

limitation was not absolute. Instead the Court found that the lag in sentencing subjected the

action of the Trial Court to a Barker analysis in order to determine whether a denial of due

process had taken place.

The Stensgar Court went on to find that the eighteen day delay did not violate the

defendant/appellant’s due process rights. The Trial Court based the delay on court congestion,

which the Stensgar Court accepted as valid, and the Stensgar Court found that the trial judge put

into the record factors that supported the failure to act within the 60-day limit.

Here, unlike the facts in Stensgar, the Appellant did regularly assert his right to speedy

trial, which would militate in his favor were the time extension beyond the rule longer.

Appellant also raises the issue of his concern regarding the extension of his pretrial

detention. Appellant was offered a reduction in bail but did not pursue the offer in any

substantial manner. Nothing in the record indicates that the additional eighteen days impaired

Appellant’s defense.

Appellant argues that the lack of statutory permission for the Court to exercise discretion

in trial setting in CTC § 2-1-102(d) as compared to the other three sections of the Colville speedy

trial statute makes the 60 day time limit in CTC § 2-1-102(d) mandatory. We find, however, that

the lack of discretionary language in CTC § 2-1-102(d) rather than making the 60 day limitation

mandatory, may subject exceeding the 60 day time limit to a Barker analysis if the additional time

before trial is of sufficient length to meet the “presumptively prejudicial” test set out in Barker.

In Barker, the Court found that in order to be required to conduct a due process review of

a violation of a speedy trial claim, the asserted delay must be beyond a period that could be found

to be “presumptively prejudicial.” The standard for “presumptively prejudicial” was not stated,

but under this standard the state and federal courts have looked at time lags from a few months to

seven and ten years with a trend toward some flexibility. This flexibility appears to be required

because the only remedy available for violation of the speedy trial requirement is dismissal of

charges.

A review of recent state appellate decisions shows, with one exception, that periods of

less than seven or eight months between the filing of charges and a date of trial are not considered

‘presumptively prejudicial.” When the lag between filing and trial is not “presumptively

prejudicial” these courts find that it is unnecessary to review the remaining Barker factors to

Colville Court of Appeals Reporter

12 CCAR ___

determine whether any due process violation has taken place. The exception is Minnesota, where

pursuant to statutory rules, a trial must be held within 60 days of the date that a defendant makes a

formal demand for a speedy trial. The failure to conduct a trial within the 60 days triggers a full

Barker review. State v. Johnson, 911 N.W. 2d 136 (Minn. App. 2012).

As a result, and specifically limited to the facts of this appeal, we find the additional

eighteen days during which Appellant remained incarcerated prior to trial does not meet the

“presumptively prejudicial” standard and no further Barker analysis is required.

VOIR DIRE

The manner of the conduct of voir dire is ordinarily within the discretion of the trial

judge. In reviewing the conduct of voir dire of a jury we apply an abuse of discretion standard.

After considering the audio record of the voir dire and empaneling of the jury in in this

case, we do not find that the Trial Court abused its discretion. We do not find that the questions

regarding the act of rape asked of the prospective jurors were prejudicial, nor do we find that the

denial of the defense of rebuttal voir dire was prejudicial to Appellant’s defense.

AMENDMENT OF COMPLAINT

Immediately prior to the commencement of the trial, the prosecution moved to amend the

complaint to state that the unlawful sexual contact between Appellant and the alleged victim

occurred only on the 16th of April, 2014, rather than the 16th and 17th of April, 2014 as stated in

the original complaint. While this amendment did reduce the burden on the prosecution to prove

sexual contact on the 17th of April, 2014; it also allowed the defense to focus its defense to the

allegations involving any activities of the 16th of April, 2014. We find no prejudice to Appellant

in the allowing of the amendment.

ADMISSION OF APPELLANT’S CRIMINAL RECORD

At trial, Appellant testified regarding his prior convictions for crimes involving

dishonesty. The Court then permitted the prosecution to introduce into evidence Judgment and

Sentencing orders and charging documents as evidence of those convictions. Appellant asserts

that the Court erred by allowing those documents to be seen by the jury.

Appellant correctly notes that the Trial Court may not use state common law to decide

questions regarding the introduction of evidence. See: CTC § 2-1-171. Appellant argues that,

lacking state common law as a guide, the Court must look to Washington State Rules of Evidence

to resolve evidence issues. Appellant further argues that under the Washington rules the

introduction of the sentencing orders and charges would not have been permitted. However, the

Colville Code, when tribal law and state common law are unavailable, directs the Court to look to

federal statutes in resolving issues. See: CTC § 1-2-11. The Federal Rules of Evidence became

Colville Court of Appeals Reporter

12 CCAR ___

federal statutory law in 1975. P.L. 93-595, 88 Stat. 1956. This Court has for some years

recognized the Federal Rules of Evidence applicable to this issue, FRE 609, and federal decisions

interpreting it as the evidence rule of the Tribes.

When considering the issue of the application of evidence rules in proceedings before the

Colville Tribal Court and the Court of Appeals, the Federal Rules of Evidence have been looked

to as defining how the issue should be resolved. In Waters v. Colville Confederated Tribes, 3

CCAR 35, 2 CTCR 19 (1996) the Federal Rules of Evidence 607, 801 and 803 controlling hearsay

were applied both by the Trial and Appellate Courts with regard to the proceedings therein. In

Tonasket v. Colville Confederated Tribes, 7 CCAR 40, 4 CTCR 13,(2004) this Court, while not

specifically adopting FRE 606(b) as applicable to the proceedings therein, did follow that Rule

and interpretation of that Rule, to resolve one of the key issues before it. In Louie v. Colville

Confederated Tribes, 8 CCAR 49, 4 CTCR 27,(2006) this Court recognized that the Tribes had

not enacted its own rules of evidence and then went on to apply FRE 201 to resolve the

evidentiary issue presented by the appeal.

We review the evidentiary ruling of the Trial Court for abuse of judicial discretion.

When Appellant, here, testified regarding his prior convictions, the door was opened to the Court

allowing evidence of those convictions to be presented to the jury pursuant to FRE 609. Sanchez

v. McCray, 349 Fed. Appx. 479 (11th Cir. 2009); U.S. v. Jackson, 310 F.3d 1053 (8th Cir. 2002);

U.S. v. Perry, 857 F.2d 1346 (9th Cir. 1988). We find no abuse of discretion, here, in allowing

evidence of the prior convictions to be presented to the jury.

CONCLUSION

The Trial Court is Affirmed and this matter is remanded to the Trial Court for further

action consistent with this Opinion.

Colville Court of Appeals Reporter

12 CCAR ___

In Re the Writ of Habeas Corpus for Max LAZARD,

Garry ZACHERLE, Appellant,

vs.

Max LAZARD, Appellee.

Case No. AP15-012, 6 CTCR 32

12 CCAR 39

[Michael Humiston, Office of Reservation Attorney, appeared for Appellant.

Dave Stevens, Office of Public Defender, appeared for Appellee.

Trial Court Case No. CV-OC-2015-38192; CR-2014-37191]

Hearing held September 18, 2015. Decided October 1, 2015.

Before Hon. Anita Dupris, Hon. Dennis L. Nelson, and Hon. Michael Taylor

Taylor, J.

This matter comes before the Court of Appeals (COA) for an Initial Hearing on

September 18, 2015 upon an appeal of a Writ of Habeas Corpus issued by the Trial Court on July

20, 2015. Appellant appeared through counsel, Michael Humiston, CCT Office of Reservation

Attorney; Appellee appeared through counsel, David Stevens, CCT Public Defender’s Office.

After reviewing the record and applicable law, we find the Trial Court erred in issuing the Writ of

Habeas Corpus. The reasoning is set out below.

SUMMARY OF FACTS

Appellee in this matter sought a Writ of Habeas Corpus from the Trial Court based on his

claim that aspects of his sentencing violated the Tribal Law and Order Act of 2010, in that the

public structure of Colville Tribal law did not provide published rules of evidence. The Trial

Court granted the Writ and Appellee was released from custody. At the time the Writ was sought

Appellee was in custody pending an active appeal of his convictions.

On August 21, 2014, Appellee was charged with four counts involving Delivery of a

Controlled Substance. On September 25, 2014, he pleaded guilty to Count 1, Count 2, and Count

4 of the complaint. Count 3 was dismissed pursuant to a plea bargain. He was informed on his

Statement of Guilty Plea, which he initialed, that “The judge does not have to follow anyone’s

recommendation as to sentence and may sentence up to the maximum allowed by law. The judge

may also decide to make my sentences run concurrently or consecutive.” The joint sentencing

recommendation was 360 days in jail and 180 days suspended with one year supervised probation.

Colville Court of Appeals Reporter

12 CCAR ___

The Court ordered a Pre-sentence Investigation. The Pre-sentence Investigation recommended

360-days incarceration with two years of supervised probation.

On November 21, 2014, Appellee was sentenced to 360 days on Count 1 with no time

suspended; 360 days on Count 2 with no time suspended; and 360 days on Count 4 with 360 days

suspended. Appellee was allowed to go to treatment and get day-for-day credit after serving one

year. The Court imposed 36-months’ probation. Appellee noted his exception to probation

length, but did not raise issues regarding the Indian Civil Rights Act and its recent amendments,

titled the Tribal Law and Order Act of 2010.23 Thus, the Trial Court had no opportunity to rule

on the sentencing limitations in the TLOA.

Appellee timely appealed his sentencing to this Court (November 25, 2014) arguing that

the length of his sentencing/probation violated the ICRA/TLOA because the manner in which the

Colville Tribal Law and Order Code and the common law of the Colville Tribes establish tribal

rules of evidence places mandatory TLOA limits upon the sentencing/probation authority of the

Tribal Court. Appellee’s appeal is still pending before this Court. Briefing and oral arguments

have been completed and the matter fully submitted on September 18, 2015.

Several months after his sentencing and appeal, Appellee petitioned for a writ of habeas

corpus (July 15, 2015) pursuant to CTC § 2-1-121, arguing that the manner in which Colville

Tribal Law treats rules of evidence places mandatory TLOA limits on the sentencing authority of

the Colville Tribal Court. Appellee argued that the length of his sentence/probation was beyond

that permitted by the provisions of TLOA.

At the same time Appellee, pursuant to CTC § 1-1-143, filed a motion with the Trial

Court to disqualify the judge who sentenced him. The reasons for disqualification set out in the

Affidavit of Prejudice included sentencing Appellee to terms different than those recommended

by (1) prosecution and defense and (2) the Pre-sentence Investigation. In addition, the Affidavit

alleged that the sentence imposed by the Court violated “the Indian Civil Rights Act of 1968 as

amended.” (i.e., TLOA).

The Trial Court on July 17, 2015, acting through a reviewing judge, granted the Motion

disqualifying the sentencing judge from hearing the Appellee for a writ of habeas corpus, finding

that the sentencing judge imposed a sentence “double the joint recommendation and far in excess

of the Pre-sentence Investigation.24

Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2261. (TLOA)

While our holding in this matter causes the issue of disqualification of the trial judge to be moot, the finding of the reviewing court would

appear to lack careful consideration. Issues that might have been considered by the reviewing court include that the Appellee had written notice

of judicial discretion in his sentencing, current Colville law appeared to permit the sentence imposed by the trial judge and sentencing, when

accomplished within the law of the jurisdiction, is generally not considered evidence of judicial prejudice.

Colville Court of Appeals Reporter

12 CCAR ___

On July 17, 2015, the Court granted the Appellee the writ of habeas corpus and directed

the release of Appellee from incarceration. The Tribes timely filed an appeal of the granting of

the writ and the disqualification of the sentencing judge.

The Order granting the Writ reviews

the requirements and limitation included in TLOA and finds that, because Colville law does not

comply with certain provisions of TLOA, the sentence imposed upon Appellee was and is beyond

the jurisdiction of the Tribal Court and unlawful. Order, Conclusions of Law and Order granting

Writ of July 17, 2015.

DISCUSSION

The Trial Court wherein the Petition for the Writ was filed appears to have been aware

that a habeas writ may not issue when the basis upon which the writ is sought is also the basis of

an active proceeding before the Court of Appeals. Zacherle v. CCT, 8 CCAR 70, 4 CTCR 30

(2006). Trial Court Order of 20 July 2015, Finding of Fact #1.6.

The Order granting the Writ states “The issue before the Court of Appeals varies from

Mr. Lazard’s legal issues outlined in the Habeas Petition in this action.” No support for this

statement is provided either in the Findings, the Conclusions or in the Petition. There is no

indication in the Order that the Trial Court in which the Petition for the Writ was filed reviewed

any of the filings in Max Harley Lazard v CCT, AP-14-019 which would have revealed that the

basis upon which the Writ was sought, i.e., sentencing beyond that allowed pursuant to the Tribal

Law and Order Act of 2010, Pub. L. 111-211, 124 Stat. 2258 (2010), is precisely an issue put

before this Court in appeal of Appellee’s convictions.

Pursuant to our holding in Zacherle v. CCT, 8 CCAR 70, 4 CTCR 30 (2006) a trial court

must decline to hear a question when that very question is already pending before this Court.

The failure of the Trial Court to follow the law as set out in Zacherle divested the Trial Court of

jurisdiction to grant the Writ. See also: Desautel v. Dupris, 11 CCAR 6, 8 (2011). We hold that

the Trial Court lacked jurisdiction to entertain the Petition for the writ of habeas corpus in this

case.

ORDER

Based on the foregoing, it is ORDERED that the Writ of Habeas Corpus issued on July

17, 2015 in this matter is void and this matter is remanded to the Trial Court for proceedings

consistent with this opinion.

Colville Court of Appeals Reporter

12 CCAR ___

Jennifer Peoples GALLAHER, Appellant,

vs.

Vernon REYES, Appellee.

Case No. AP15-017, 6 CTCR 33

12 CCAR 42

[M. Carroll, Attorney at Law, appeared for Appellant.

L. Reinbold, Attorney at Law, appeared for Appellee.

Trial Court Case No. CV-CU-2013-35034]

Hearing November 20, 2015. Decided November 24, 2015.

Before Chief Justice Anita Dupris, Justice Rebecca M. Baker, and Justice Gary F. Bass

Dupris, J.

This matter came before the Court of Appeals for an Initial Hearing on November 20,

2015. Appellant appeared in person and with spokesperson Mark Carroll. Appellee appeared in

person and with spokesperson Leone Reinbold. Appellant appeals the Trial Court’s decision to

deny her Motion to Recuse Judge Nomee from hearing this case. Appellant alleges that Judge

Nomee resides across the street from Appellee and feels that this proximity potentially jeopardizes

her right for a fair trial.

A petition for custody was filed in the Trial Court on January 31, 2015. An Order

Assigning Judge was entered on September 22, 2015. The assigned judge entered an Order for

Temporary Custody on September 30, 2015. Appellant then alleges that she discovered that the

Appellee and Judge Nomee were neighbors. She then filed a Motion to Recuse on October 14,

2015. Another judge entered an order which denied Appellant’s motion. No hearing was held on

the motion.

Colville Tribal Law and Order Code (CTLOC) § 1-1-143, Disqualification of Judge

states:

Any party to any legal proceeding hereunder, including trials and appeals,

may accomplish a change of assignment of his case from one judge to

another upon filing an Affidavit of Prejudice with the Court, giving

satisfactory reasons for the change. The Affidavit shall be in written form

and must be filed with the Court before any trial action whatever has been

taken by the initial judge. The initial judge shall refer the affidavit to

another judge for decision.

This Court has previously found that a reviewing judge should make more detailed

inquiries regarding whether there are sufficient facts to support allegations of potential bias on the

part of a judge. See, CTEC Gaming v. Mosqueda, 8 CCAR 61, 4 CTCR 28, 33 I.L.R. 6101 (2006).

Colville Court of Appeals Reporter

12 CCAR ___

In Ortiz v. Pakootas, 5 CCAR 50, 3 CTCR 36, 28 I.L.R. 6183 (2001), this Court remanded the

case back to the trial court to allow the judge to “make a specific inquiry into the facts alleged to

support the Appellant’s claim of unfair treatment and lack of notice before she enters an order on

the Motion to Recuse. Such an inquiry may be made either by accepting sworn affidavits on the

issues or by having a hearing on the motion.” Finally in Cleparty v. CCT, 2 CCAR 19, 2 CTCR

55, 21 I.L.R. 6004 (1993) determined that the submitted affidavit of prejudice did not contain

sufficient statements of fact from which the reviewing judge could make an informed decision.

In the instant case, Judge George reviewed the Motion to Recuse Judge Nomee and

entered her decision to deny the motion. The allegations in the affidavit attached to the motion

state that after the temporary custody hearing the Appellant called her attorney to say that she

discovered that Judge Nomee lived directly across the street from Appellee. Judge Nomee did not

disclose this information to the parties and thus it gave the appearance that Judge Nomee was

giving preferential treatment to Appellee. The affidavit further states that when Judge Nomee was

assigned the case, notice should have been sent to the parties25.

The parties concur that there was no hearing held on the motion. There were no sworn

affidavits submitted which detailed how either party was prejudiced by Judge Nomee’s presence

on the Bench. While allegations of the appearance of fairness may be sufficient in some instances

to show prejudice, in this case, we do not believe Judge George did a sufficient inquiry as to the

basis of the allegations. The affidavit was signed by the spokesman for Appellant which contain

the allegations allegedly made by his client to him. The client did not sign the affidavit. The facts

stated in the affidavit were not independently verified by Mr. Carroll.

Based on the foregoing, this Court finds that the reviewing judge did not conduct a

sufficient inquiry into the allegations in the Affidavit of Prejudice and this case should be

remanded to make such an inquiry.

It is ORDERED that the Order Granting the Appellee/Petitioner is vacated and this matter

shall be remanded to the Trial Court to conduct an inquiry into the facts alleged in the Affidavit

Of Prejudice and a new order be issued thereafter.

Appellant cites to CTLOC 1-1-140(b) which states that when an assignment is made for judges other than the Chief Judge or associate

judges, notice must be given to the parties. In this case, Judge Nomee is an associate judge, even though her title is “Traditional Judge”, thus no

notice is required.

Colville Court of Appeals Reporter

12 CCAR ___

Cheynne GARDNER, Appellant,

vs.

Aaron HOLCOMB, Appellee.

Case No. AP15-015, 6 CTCR 34

12 CCAR 44

[Parker Parsons, Attorney, NJP, for Appellant.

Appellee appeared without representation.

Trial Court Case No. CV-CU-2015-38023]

Hearing November 20, 2015. Decision November 30, 2015.

Before Chief Justice Anita Dupris, Justice Dave Bonga, and Justice Theresa M. Pouley

Bonga, J

This matter came before the Court of Appeals (COA) for an Initial Hearing on November

20, 2015. Parker Parsons, Northwest Justice Project, appeared for Appellant. Appellee appeared

personally and was not represented by a spokesperson.

After a review of the record and the law, the COA finds that the Trial Court did not have

subject matter jurisdiction. Therefore this case shall be remanded to the Trial Court for dismissal.

SUMMARY

A Petition for Custody and/or Support and a Proposed Parenting Plan were filed by

Appellee/Petitioner on January 30, 2015. In his petition, Appellee/Petitioner states that the Trial

Court has jurisdiction over this matter. Petition for Custody and/or Support, I. Jurisdiction. He

goes on to state that he does not live on the Colville Indian Reservation but he is a member of the

Colville Tribe. He then states that the Appellant/Respondent does not reside on the Colville

Reservation. The minor child does not live on the Colville Reservation and is not enrolled, though

Appellee/Petitioner states that the minor “could be enrolled if not for the mothers [sic]

interference.”

In her answer, Appellant/Respondent argues that the Court does not have jurisdiction, that

she is not a member of the Colville, and that the minor does not live, and has never lived, on the

Colville Reservation. She also states that the Appellee/Petitioner has not lived on the Colville

Reservation for at least five years. Appellant/Respondent denies that the minor could be eligible

for enrollment with the Tribe.

A paternity hearing was held on June 30, 2015. At that hearing the Trial Court found that

both parties consented to jurisdiction for purposes of establishing paternity, pursuant to § 2-2-1 of

Colville Court of Appeals Reporter

12 CCAR ___

the Colville Tribal Law and Order Code (CTLOC)26. The Trial Court found that the Court had

subject matter jurisdiction over the parties by citing to Chapter 5-127 of the CTLOC. The Trial

Court cites to CTLOC 1-1-7028 and 1-1-43129 as granting jurisdiction to the Court. The Trial

Court went on to interpret the language in In Re the Name Change of Mitzi Jean Sweowat, 10

CCAR 01, 5 CTCR 19, 36 I.L.R. 6041 (2009) as granting broad scope of authority to the Courts

in determining jurisdiction30.

A custody hearing was held on September 3, 2015. Both parties appeared and neither

were represented by a spokesperson. The Court found that there was a domestic violence incident

in which the Appellant/Respondent was the perpetrator. Custody was awarded to the

Appellee/Petitioner. Appellant/Respondent timely filed an appeal.

JURISDICTION

“The issue of subject matter jurisdiction is a question of law, subject to a review de novo.

We review findings of fact under the clearly erroneous standard, and errors of law de novo.”

Green v. Green, 10 CCAR 37, 5 CTCR 39 (02/08/2011). “The question of jurisdiction is entirely

one of law. The standard of review for questions of law is non-deferential to findings and

conclusions of the trial court and is de novo.” Hoover v. CCT, 6 CCAR 16, 3 CTCR 44, 26 I.L.R.

6035 (03-13-2002).

2-2-1. Jurisdiction Generally. The Court shall have jurisdiction of all suits involving persons residing within the Tribal jurisdiction as defined

by this Code and all other suits in which a party is deemed to have consented to the jurisdiction of the Court, or in which the events giving rise to

the action occurred within the Tribal jurisdiction as defined by this Code.

5-1-205. Jurisdiction. (a) the Court shall have jurisdiction of any action to determine paternity brought under this Chapter. The action may be

joined with an action for divorce, dissolution, annulment, declaration of invalidity, separate maintenance, filiation, child support, or any other

civil action in which paternity is an issue including proceedings in Juvenile Court...

Colville Tribal Court Jurisdiction – Defined. The jurisdiction of the Tribal Court and the effective area of this Code shall include all territory

within the Reservation boundaries, and the lands outside the boundaries of the Reservation held in trust by the United States for Tribal members

of the Tribes, and it shall be over all persons therein... To the greatest extent permissible by law, the jurisdiction of the Tribal Court shall apply to

all persons on lands in the North Half and on other lands w[h]ere the Colville Tribes may be authorized to enforce its interests or rights and

members asserting rights held by the Tribe without regard to location.

Acts Submitting Person to Jurisdiction of Tribal Court. (a) The Colville Confederated Tribes shall have civil jurisdiction over: (1) any person

residing or present within the Reservation or lands outside the boundaries of the Reservation held in trust by the United States for Tribal

members of the Tribes; ... (6) Children and their parent(s), guardian, legal custodians or other persons with responsibility for or control of the

child who leave the exterior boundaries of the Reservation and over whom the Court had jurisdiction at the time they left; (7) Persons living in a

marital relationship within the Reservation notwithstanding subsequent departure from the Reservation, so long as the petitioning party has

continued to reside on the Reservation; (8) Persons engaging in the act of sexual intercourse within the Reservation with respect to which a child

may have been conceived; ... (11) Any child custody proceeding as defined in the Indian Child Welfare Act, 25 U.S.C. § 1903(1)...

“This Court will continue to view the jurisdiction of the Tribes broadly unless there is an express limitation on the exercise of that

jurisdiction.”

Colville Court of Appeals Reporter

12 CCAR ___

DISCUSSION

This Court discussed subject matter jurisdiction briefly in Freund v. Pearson, 1 CCAR

29, 1 CTCR 43, 16 I.L.R. 6150 (09-28-1989). Appellant Freund argued that the Court did not have

subject matter jurisdiction because he was not domiciled on the Colville Reservation, citing

Mississippi Band of Choctaw Indians v. Holyfield (U.S. Supreme Court, decided 04-03-1989) 16

I.L.R. 1008. This Court found that his argument was not supported as it dealt with the exclusive

jurisdiction of Indian children under the Indian Child Welfare Act (ICWA).The minors in Freund

were not subject to ICWA, but were before the Court pursuant to the Tribes’ Domestic Relations

code. The Court concluded that the Tribe had exclusive jurisdiction because of the “on reservation

domicile of the mother.”

The child in the instant case is also not subject to the ICWA. The case was brought before

the Trial Court pursuant to CTLOC Title 5-1. Therefore the domicile of the child follows the

domicile of the mother, which is off-reservation.

The Trial Court denied the Appellant/Respondent’s motion to dismiss and ruled that there

was jurisdiction in addition to 5-1 through sections 1-1-430 and 1-1-431(a)(10). This Court states

that “this section (1-1-431(a)(10)) clearly is in keeping with the overall jurisdiction section

providing for exercise of jurisdiction to the greatest extent permissible by the law because

authorized civil jurisdiction over “all causes of action which involve a member of the Tribe.”

Sweowat, supra. As stated before, the facts of this case indicate that neither Appellant Gardner

nor her daughter, Haley, are members or eligible for membership in the Tribes. The fact that

Haley may be eligible at some time in the future for care through Indian Health Services is

irrelevant in determining if Haley is a member of the Tribes which is necessary for jurisdiction by

the Tribes’ court system. The child is a descendant and not eligible for enrollment as a

member31. The Appellant/Respondent has argued at all times that the Court did not have

jurisdiction to hear this matter. This Court agrees. It appears that the Trial Court over-reached to

find jurisdiction over this custody.

Based on the forgoing, this Court finds that the Trial Court did not have subject matter

jurisdiction to entertain this case. The order granting custody on September 15, 2015 should be

vacated, and this case should be remanded to the Trial Court for dismissal.

It is ORDERED that:

1. The Trial Court did not have jurisdiction to hear this matter.

2. The Findings of Fact, Conclusions of Law, and Decree of Custody entered on

September 15, 2015, are vacated.

Appellee/Petitioner argued before this Court that the child was enrolled as a descendant, but that

designation was determined to pertain to Indian Health Services benefit eligibility only. There is nothing

in the CTLOC Enrollment Statute, Chapter 8-1, which confers any type of membership on descendants.

Colville Court of Appeals Reporter

12 CCAR ___

3. This case is remanded to the Trial Court for entry of an order of dismissal.

Colville Court of Appeals Reporter

12 CCAR ___

PAGE DELIBERATELY LEFT BLANK

Colville Court of Appeals Reporter

12 CCAR ___

Jerry LOUIE, Appellant,

vs.

COLVILLE TRIBAL FEDERAL CORPORATION, Appellee.

Case No. AP13-023, 6 CTCR 35

12 CCAR 48

[Mark Carroll, Attorney at Law, appeared for Appellant.

Tim McLaughlin, Attorney at Law, appeared for Appellee.

Trial Court Case No. CV-OC-2012-35234]

Hearing January 16, 2015. Decided December 1, 2015.

Before Hon. Theresa M. Pouley, Hon. Rebecca M. Baker, and Hon. Gary F. Bass

BAKER, J.

THIS MATTER comes before this court on an appeal by Jerry Louie (“Louie”) from the

Order of the Colville Tribal Court (“Tribal Court”), per the Honorable Cynthia Jordan. This

order had dismissed Louie’s petition for review of a decision, after an evidentiary hearing, of the

Administrative Hearing Officer (“AHO”), the Honorable S. Renee Ewalt. The Tribal Court’s and

the AHO’s dismissal orders had the effect of upholding Louie’s termination from employment at

Mill Bay Casino, an enterprise of the Colville Tribal Federal Corporation (“CTFC”). In 2012

Louie was terminated from his employment with CTFC without any prior progressive discipline.

Louie challenged his termination through CTFC supervisors, to no avail. He then appealed to the

AHO on numerous grounds, while also arguing that the AHO lacked subject matter jurisdiction to

decide his appeal. After an evidentiary hearing and an adverse ruling by the AHO Louie sought

review in Tribal Court and now this court on the basis of both the Colville Confederated Tribes’

Administrative Procedures Act (“APA”), CTC § 2-4-1 et seq., and the Colville Tribal Civil Rights

Act (“CTCRA”), CTC § 1-5-1 et seq.

Although for different reasons than those cited by the Tribal Court, we affirm.

Appellant Louie was represented throughout by attorney Mark J. Carroll. Appellee

CTFC was represented throughout by attorney Timothy H. McLaughlin.

FACTS

The procedural facts are not in dispute, nor are the facts related to the history of Louie’s

initial hire as an employee of the Colville Confederated Tribes (“CCT” or “the Tribes”), then of

the Colville Tribal Enterprise Corporation (“CTEC”), and of his later retention as an employee of

the Colville Tribal Federal Corporation (“CTFC”), appellee herein. Also undisputed is the

ownership of CTEC and CTFC and the adoption of the CTEC Employee Policy Manual, which

later became the Employee Policy Manual of CTFC. Finally, it is not in dispute that CTEC’s

(later CTFC’s) Employee Policy Manual, while emphasizing the at-will nature of CTFC’s

Colville Court of Appeals Reporter

12 CCAR ___

employment except in certain instances, it also provided a mechanism for review of terminations

by an administrative hearing officer (“AHO”) who is independent of the tribal entity, now CTFC.

Later, a document called “Supplementary Procedures for Administrative Hearings” was

generated.32

Jerry Louie became an employee of the Tribes in 1982. In 1996, however, he took a job

with the Mill Bay Casino when the casino was owned and operated by the Colville Tribal

Enterprise Corporation (“CTEC”), a wholly-owned corporation of the Tribes.

In early 2006,

while Louie was still an employee of CTEC, this court decided Finley v. Colville Tribal Services

Corporation, 8 CCAR 38, 33 I.L.R. 6038 (2006), which established that Tobias Finley, at the time

a seasonal employee of a previous wholly-owned enterprise of the Tribes, Colville Tribal Services

Corporation (“CTSC”), possessed a property interest in his continued employment. CTSC had

argued that its employee policy manual accorded no right of review for terminated seasonal

employees, because, like new employees, they were subject to a “probationary status.”

Construing CTSC’s employee policy manual against its drafter, CTSC, this court held on due

process grounds that, like other Tribal employees accruing benefits while employed, Finley

should have had the right to a review by an administrative law judge of the merits of the reasons

for his termination.

Later in 2006, the Board of Directors of CTEC adopted an Employee Policy Manual

(“EPM”), and existing employees, including Louie, were required to acknowledge that they were

subject to the EPM’s terms and conditions in order to continue to work there. Louie complied

with this request and kept his employment. Notably, the CTEC EPM explicitly and

conspicuously made all CTEC employees “at-will” employees and, although “guidelines” for

progressive discipline were provided, they were delineated as “guidelines” only, and not required

to be followed in “appropriate circumstances,” going on to provide:

Nothing in this section [pertaining to progressive disciplinary guidelines] alters the at-will

nature of the employment relationship between CTEC and its employees. This policy

should not be construed as promising specific treatment in a particular situation. 34

The record does not establish whether this document was adopted by CTEC’s Board of Directors or its staff. Thus we respectfully disagree

with the AHO’s statement at page 18, lines 21-22, that “to argue that the Supplementary Procedures are being used without the awareness or

approval of the Board of Directors or Chief Executive Officer is pure nonsense.” This issue, while, as discussed infra, is not determinative in

this case, it could well be crucial in future cases brought under the CTCRA.

This provision was set forth in Part VI of the EPM. CTFC Exhibit 1 before the ALJ.

EPM at Section XII(B), CTFC Exhibit 1 before the ALJ.

Colville Court of Appeals Reporter

12 CCAR ___

Clearly it was the intent of the CTEC EPM to avoid the implications of Finley. The CTEC EPM

further provided that any future policies for the CTEC organization, with some exceptions, could

be made only by action by the CTEC Board of Directors.35

In 2009, someone at CTEC developed “Supplementary Procedures” applicable to CTEC

employment.36 These “Supplementary Procedures” provided details for how administrative

appeals would be handled, setting up specific mechanisms for such appeals in the event that all

internal CTEC supervisory review of an employee’s termination had taken place and the

employee still felt aggrieved.

Although Louie made various objections to hearing before an AHO and argued that the

AHO process was not applicable to him, and moved the AHO to recuse herself for being biased,

arguments addressed infra, he makes no argument that the particular AHO assigned was not an

AHO anticipated by the Supplementary Procedures or – if the Supplementary Procedures were

simply a staff-generated document – that they exceeded the authority of the staff. Nor does he

challenge the propriety of the selection process for AHOs under the Supplementary Procedures,

although he does take issue with the fact that he did not receive a copy of the Supplementary

Procedures until after he had appealed his termination to the AHO. Nevertheless, Mr. Louie

ultimately received a full evidentiary hearing before the AHO.

While the Employee Policy Manual is silent on this point, the Supplementary Procedures

provide that the AHO hearing is the employee’s final remedy and explicitly state that no further

review is allowed, to include any appeal to or review by Tribal Court or, indeed, by this court. 37

The Supplementary Procedures, along with the EPM, also contain language to the effect that

sovereign immunity is not waived by any of their provisions.38

In 2010, the Tribes’ Business Council, the governing body of the Colville Confederated

Tribes as the sole shareholder/owner of CTEC, transferred all of CTEC’s assets to CTFC.39 All

CTEC employees then began to be paid by and to receive benefits from CTFC rather than CTEC.

No new policy manuals have been adopted since CTEC’s assets were transferred to CTFC, but it

CTSC Exhibit 1 before the ALJ, EPM Section I(B).

ALJ Finding of Fact No. 1.27 (testimony of Debi Condon). CTFC Exhibit 3 before the ALJ.

Supplementary Procedures, Administrative Hearings, subsection B.14, CTFC Exhibit 3 before the AHO.

EPM at p. 8, Part III.; Supplementary Procedures at p. 1, under Generally, paragraph F.

AHO Finding of Fact No. 1.27 (testimony of Debi Condon).

Colville Court of Appeals Reporter

12 CCAR ___

is undisputed that all obligations of CTEC (if any) under the CTEC EPM and Supplementary

Procedures accompanied the transfer of assets.40

Specifically in relation to Mr. Louie, the AHO made a number of Findings of Fact, to

which Mr. Louie has not assigned error. While we emphasize that it is singularly unhelpful when

a fact-finder, such as the AHO here, prefaces each “Finding of Fact” with the words, “X testified

that . . .,”41 nevertheless it is clear from the AHO’s conclusions of law and, especially, the lengthy

discussion in the “Order” section of her written decision, that she adopted the testimony of

CTFC’s witnesses and largely discounted that of Mr. Louie. It is on this basis that we recite the

following facts.

On April 17, 2012, Jerry Louie was terminated from his employment at CTFC.42 The

letter declared that Mr. Louie was “not happy with [his] job” and cited the at-will employment

clause set out in Section VI of the EPM.43 He had not been given any written warnings or

progressive discipline, although his supervisor had discussed various issues and grievances with

him over time.45 The AHO found that he was not terminated due to retaliation for Mr. Louie’s

contacting the Tribal Employment Rights Office or a Councilwoman regarding grievances, and,

although Mr. Louie was a member of the protected class in regard to age discrimination, age was

not a factor in the decision to terminate him.46 He timely appealed his termination through the

chain of command at CTFC, but to no avail. He then properly and timely submitted notice that

he wished to appeal his termination and requested a hearing before an Administrative Hearing

Officer as set forth in the EPM.

The Honorable S. Renee Ewalt was assigned to hear Mr. Louie’s appeal. Before the

AHO, CTFC filed a motion to quash a subpoena. AHO Ewalt set a briefing schedule but counsel

for Mr. Louie needed additional time. Ultimately, AHO Ewalt, despite Mr. Louie’s late-filed

Ibid.

Such a statement is not really a “finding” but a recitation of the testimony.

AHO Finding of Fact No. 1.2.

AHO Finding of Fact No. 1.3.

See AHO Finding of Fact Nos. 1.7 and 1.15.

AHO Finding of Fact Nos. 1.13 – 1.15.

AHO Finding of Fact No. 1.16.

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brief, considered both parties’ briefings.47 Without oral argument, she granted CTFC’s motion to

quash. Subsequently AHO Ewalt held a full evidentiary hearing. In a 28-page decision replete

with findings of fact and conclusions of law, AHO Ewalt upheld Mr. Louie’s termination and

dismissed his appeal. At one point during the course of the appeal, AHO Ewalt may have told

Mr. Louie that if he was dissatisfied with her decision he would have the right to further appeal to

the Tribal Court.

I. ISSUES ON APPEAL

Preliminarily, CTFC has moved to dismiss this appeal, raising two grounds for its motion:

1. This court, like the Tribal Court, lacks subject matter

jurisdiction to conduct any type of review of Louie’s

termination by virtue of the structure of the CTEC/CTFC

Employment Policy Manual and Supplementary

Procedures.

2. CTFC, as a “Section 17 federal corporation,”48 is entitled

to sovereign immunity from suit in this case.

Louie raises a number of issues, which can be encapsulated as follows:

1. The CTEC Employee Policy Manual and Supplementary

Procedures do not apply to him, and thus he should be

treated as a Tribal employee which entitles him to review

of his termination by the Colville Tribal Court under the

Colville Tribes’ Administrative Procedures Act, CTC §

2-4-1 et seq.; and the AHO’s statement that he was

entitled to Tribal Court review should be enforced;

2. Louie was deprived of an impartial decision-maker to

review his termination from employment with CTFC,

which implicated the right of due process when the AHO

refused to recuse herself.

3. As a result of the denial of due process to him, and even

if the CTEC EPM applies to him, the Colville Tribal

Civil Rights Act (“CTCRA”), CTC § 1-5-1 et seq.,

entitles him to relief via the Tribal Court because he was

not afforded due process after being deprived of his

employment, a property interest under Finley, supra.

AHO Findings of Fact and Conclusions of Law; Order Dismissing Appeal, at p. 2, ll. 8-10.

See, generally, CTFC’s Response Brief and Renewed Motion to Dismiss (filed December 22, 2014).

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12 CCAR ___

II. STANDARD OF REVIEW

This matter concerns combined issues of law and fact.

Combined issues of law and fact are reviewed under the

non-deferential de novo standard when the administration

of justice favors the Court of Appeals. “Clearly

erroneous” review is used in such questions when the

administration of justice favors the Trial Court. CCT v.

Naff, 2 CCAR 50, 2 CTCR 10, 22 ILR 6032 (1995).

Finley v. CTSC, supra (2006).

Here, issues presented by CTFC pertaining to subject matter jurisdiction are purely

questions of law. The status of CTFC and the resultant applicability of the doctrine of sovereign

immunity, however, present mixed questions of law and fact, with the factual issues not entirely

determined in this record.

The issues presented by Louie pertain to the significance of the factual history of the

establishment of CTEC and CTFC, which is not disputed; the applicability of Finley, supra, a

question of law; the application of those factors to Louie’s particular termination from

employment, a mixed question of law and fact; and the subsequent hearing(s) in front of the AHO,

including her denial of Louie’s motion for recusal, again mixed questions of law and fact.

Since the issues presented herein are ones of combined law and fact, albeit with the facts

either undisputed, or, in the case of the facts pertaining to CTFC’s sovereign immunity argument,

undetermined, the de novo standard applies.

III. SUMMARY OF DECISION

As to the issues raised by CTFC:

1. Although this court has no subject matter jurisdiction under the Tribes’ APA

to consider direct appeals from AHO decisions involving CTFC employee

terminations, the Tribal Court, and in turn this court, retain subject matter

jurisdiction to review cases when, as here, a claim of a violation of the

CTCRA has been made.

2. Although CTFC, which claims to be a “Section 17 federal corporation,” may

in fact possess some sovereign immunity by virtue of this alleged status, there

has been inadequate development of the facts to establish this status in the

record in this case, whether before the AHO, the Tribal Court or this court.

As to the issues raised by Louie:

1. Since Louie agreed to become subject to the Employee Policy Manual, rather

than refusing or declining to do so, he is bound by its provisions, which

include review of his termination from employment by only an

Administrative Hearing Officer and which allow no review by the Tribal

Court system under the Tribes’ Administrative Procedures Act. Further, the

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12 CCAR ___

AHO’s statement that Mr. Louie had a right of appeal to Tribal Court is of no

consequence.

2. No showing has been made that the AHO was prejudiced when she declined

to recuse herself after deciding a pretrial motion without oral argument, or

that in doing so she demonstrated herself to be other than an impartial

decision-maker.

3. Since a full evidentiary hearing occurred before the AHO, Louie enjoyed the

benefit of notice and an opportunity to be heard, the two key elements of due

process.

In sum, Louie is not entitled to the protection of the Tribes’ APA but instead to a hearing

before an AHO. Louie’s particular challenge to the AHO’s impartiality was without basis in this

record. And the AHO who heard his case afforded him due process of law, including both notice

and an opportunity to be fully heard on the merits of his employment appeal.

Because CTFC has moved to dismiss the appeal for lack of subject matter jurisdiction,

and because of sovereign immunity, this opinion will first address CTFC’s issues set forth above,

and, because we deny CTFC’s motion to dismiss Mr. Louie’s petition, will then address the three

issues raised by Louie.

CTFC’s ISSUES

1. Although this court has no subject matter jurisdiction under the Tribes’

APA to consider direct appeals from AHO decisions involving CTFC

employee terminations, the Tribal Court, and in turn this court, retain

subject matter jurisdiction to review cases when, as here, a claim of a

violation of the CTCRA has been made.

Although it is true that Louie’s Petition for Review filed in the Tribal Court cited largely

to the Tribes’ Administrative Procedures Act, CTC § 2-4-20, it also included a claim that the

AHO’s decision “denied Jerry Louie of due process “ (Petition, at p. 3, l. 3) and was “[i]n

violation of constitutional provisions” (Petition, at p. 3, l. 10). It went on, in the prayer for relief,

to cite not only CTC § 2-4-20 (the APA) but also CTC § 1-5-2(h), a section of the Colville Tribal

Civil Rights Act (CTCRA) dealing with denial of equal protection and due process.49

APA direct review is simply unavailable, since there is no code section allowing it in this

situation, as we will discuss more fully infra. But that does not end the inquiry.

CTC 1-5-2(h) provides:

Civil Rights of Persons Within Tribal Jurisdiction. The Confederated Tribes of the Colville Reservation in exercising

powers of self-government shall not:

***

(h) Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or

property without due process of law[.] . . .

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CTFC has steadfastly maintained in this case that there is no set of circumstances under

which review by the Tribal Court system can occur in CTFC employment termination appeals.

We disagree.

While we agree that the CTEC Employee Policy Manual and the mechanism for review of

employment terminations by an administrative hearing officer has replaced any Tribal Court

system review of such terminations under the Tribes’ APA, CTC § 2-4-20 (see discussion, infra,

of Mr. Louie’s issues), this begs the question of whether, under any circumstances, the Tribal

Court, and in turn this court on appeal from Tribal Court, has the power to consider any matter

originating as a CTFC employment appeal to the AHO.

We note that the CTCRA provides:

1-5-3 Right of Action

Any person may bring an action for declaratory and/or injunctive relief

only, against any executive officer or employee of the Confederated Tribes,

or any employee or officer of any governmental agency acting within the

jurisdiction of the Colville Tribal Court, to protect the rights set out in CTC §

1-5-2 of this Chapter.

1-5-4 Colville Tribal Court

Actions brought under CTC § 1-5-3 shall be brought only in the Courts of the

Confederated Tribes of the Colville Reservation[,] notwithstanding the fact

that a court of another jurisdiction may have concurrent jurisdiction.

CTC 1-5-3 and -4.

Thus, since Louie has pled a violation of CTC § 1-5-2(h), albeit in the context of his

employment with CTFC, he is entitled to seek relief in the Tribal Court. Specifically,

Amendment X, to the Colville Tribes’ Constitution provides, in Article VIII, as follows.

Section 1: There shall be established by the Business Council of the

Confederated Tribes of the Colville Reservation a separate branch of

government consisting of the Colville Tribal Court of Appeals, the Colville

Tribal Court, and such additional Courts as the Business Council may

determine appropriate. It shall be the duty of all Courts established under this

section to interpret and enforce the laws of the Confederated Tribes of the

Colville Reservation as adopted by the governing body of the Tribes.

A claim under the CTCRA, which is part of the “laws of the Confederated Tribes of the Colville

Reservation,” in accordance with the Tribes’ Constitution, is thus to be “interpreted” and

“enforced” in and by the Tribal Court system. Otherwise stated, the Tribal Court and this court

possess subject matter jurisdiction to hear Louie’s claims under the CTCRA arising out of the

termination of his employment with the CTFC.

Although CTFC, which claims to be a “Section 17 federal corporation,”

may in fact possess some sovereign immunity by virtue of this status,

there has been inadequate development of the facts to establish this

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12 CCAR ___

status in the record in this case, whether before the AHO, the Tribal

Court or this court.

CTFC has made the claim that it is entitled, as a “Section 17 federal corporation,” to

immunity from suit, at least in the context of this case. We disagree, primarily because the

record in this case has not been developed either timely or sufficiently to determine (a) if CTFC

is, in fact, a “Section 17 federal corporation,” or (b) what the parameters of sovereign immunity

are in relation to such corporations.

Thus, we look again to the Colville Tribal Civil Rights Act, under which we have

determined that the Tribal Court system has subject matter jurisdiction, and find the following

additional provision:

1-5-5 Sovereign Immunity

When suit is brought in the Colville Tribal Court under CTC § 1-5-4 to

protect rights set out in CTC § 1-5-2, the sovereign immunity of the Colville

Tribes is hereby waived in the Courts of the Tribes for the limited purpose of

providing declaratory and injunctive relief, where appropriate under the law

and facts asserted to protect those rights; provided, the immunity of the

Tribes is not waived with regard to damages, court costs, or attorney’s fees.

CTC 1-5-5.

Clearly, then, the Business Council did not intend for the Tribes themselves to be immune

from suit (for the limited relief as provided in CTC § 1-5-5) under the CTCRA. Nor, on the

record in this case, are we able to come up with a rationale for holding that a wholly-owned

corporation of the Tribes should be immune from suit – subject, again, to CTC § 1-5-5, which

does not allow damages, court costs, or attorney’s fees but only declaratory and injunctive relief,

which would include a declaration that the termination violated CTC § 1-5-2(h) (due process) and

reinstatement (albeit without back pay). We note that the discussion of CTFC’s purported status

as a “section 17 federal corporation” has been, at best, sketchily developed. Here again the Code

guides us by providing that the Court of Appeals “shall not . . . entertain issues on appeal that

have not been fully developed and ruled on by the Trial Court.” CTC § 1-2-106(f).

Thus, while it is certainly possible that a future case may have a properly developed

record on this important issue, this case does not.

We move, then, to the issues raised by Mr. Louie.

B. LOUIE’S ISSUES

1. Since Louie agreed to become subject to the Employee Policy Manual,

rather than refusing or declining to do so, he is bound by its provisions,

which include review of his termination from employment by only an

Administrative Hearing Officer and which allow no review by the Tribal

Court system under the Tribes’ Administrative Procedures Act.

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12 CCAR ___

Further, the AHO’s statement that Mr. Louie had a right of appeal to

Tribal Court is of no consequence.

As indicated in our discussion of the first of CTFC’s issues above, we agree that the APA

does not apply and is not available for review of Mr. Louie’s termination. Here is our reasoning

for that conclusion.

First, CTFC is correct in noting that the Tribes’ Code limits APA review to cases involving

Chapter 4-5 (On-Site Wastewater Treatment and Disposal); Chapter 4-6 (Mining

Water Quality Protection); Chapter 4-7 (Forest Practices Water Quality); Chapter

4-8 (Water Quality Standards); Chapter 4-9 (Hydraulics Project Permitting);

Chapter 4-15 (Shoreline Management); Chapter 10-1 (Tribal Employment

Rights); and Chapter 10-3 (Indian Preference in Contracting) of the Colville

Tribal Code.

CTC § 2-4-1. And, as CTFC also points out, all those matters concern actions by the Tribes

itself, not actions by CTFC. See CTC § 2-4-20, defining “agency” as “any tribal board,

commission, department or officer authorized by law to propose rules for adopting [sic] by the

Business Council or to adjudicate contested cases . . . .” CTC § 2-4-3(a). Further, the Code

provides that the Tribal Court of Appeals “shall not have jurisdiction to order the Trial Court to

take any administrative personnel actions other th[a]n that permitted under applicable personnel

policy.” CTC § 1-2-106(f). So, while it may perhaps be argued that CTFC’s Board of Directors

is a “tribal board,” within the meaning of CTC § 2-4-20 defining an “agency,” it has not been

established that CTFC’s Board of Directors is “authorized by law to propose rules for adop[tion]

by the Business Council or to adjudicate contested cases.” (Emphasis supplied.)

Further, although it is unfortunate that the AHO apparently made the statement to Mr.

Louie that he had a right to appeal any adverse decision of the AHO to Tribal Court, this cannot

result in a such a right – at least not the right to a direct appeal of the AHO’s decision. To repeat,

this court “shall not have jurisdiction to order the Trial Court to take any administrative personnel

actions other th[a]n that permitted under applicable personnel policy.” Id. On the other hand,

the AHO’s statement – according to our decision herein – was at least accurate at least insofar as

Mr. Louie’s right to have the Tribal Court review a decision which violates due process is

concerned, as we discuss, infra.

APA review is simply not available to terminated employees of CTFC.

2. No showing has been made that the AHO was prejudiced when she

declined to recuse herself after deciding a pretrial motion without oral

argument, or that in doing so she demonstrated herself to be other than

an impartial decision-maker.

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12 CCAR ___

Mr. Louie has made no claim that the AHO was not selected in such a way that he was

denied due process.50 Rather, he complains that the AHO set a deadline for briefing on a pretrial

motion brought by CTFC and decided the motion without oral argument. He then asked the

AHO to recuse, and she denied that request.

First, as CTFC points out, Mr. Louie was not prejudiced by the AHO’s setting of a

deadline for briefing, because ultimately it is clear that she considered Mr. Louie’s response to the

pretrial motion, despite its having been submitted somewhat later than her briefing schedule had

provided. This is made clear from the AHO’s Findings of Fact and Conclusions of Law; Order

Dismissing Appeal, at page 3, lines 6 through 8.

Second, although Mr. Louie expected and would have liked a live hearing on the pretrial

motion, and terms the AHO’s denial of the motion to quash a “sua sponte” order, this is a

mischaracterization. Citing Meusy v. Thomas, 10 CCAR 62, 5 CTCR 39, 38 I.L.R. 6053 (2011),

Mr. Louie correctly points out that this court has expressed its disapproval of sua sponte rulings

on substantive issues. But unlike a sua sponte order, an order issued on a motion without oral

argument is not sua sponte. Rather, the test is whether procedural due process has been accorded

the parties before a ruling is made, and whether the judicial officer has maintained not only a

sense of fairness but also the appearance of it. See, e.g., Edwards v. Bercier, 10 CCAR 18, 5

CTCR 23, 37 I.L.R. 6009 (2009). Nothing in the Tribes’ Law and Order Code requires a hearing,

in person, on any given motion. What counts is that all parties be given notice of the motion and

an opportunity to be heard – “heard,” that is, in the sense of having an opportunity to weigh in on

the issue(s) presented in the motion; and the judge must consider the arguments made by all

parties in a fair and impartial manner, giving his or her reasoning for the ruling, and

demonstrating that he or she was being fair and impartial to both parties.

Thus, in relation to CTFC’s pretrial motion to quash, in due process terms, Mr. Louie had

notice of the motion and an opportunity to be “heard” via his written submittals. He received

“process” that was “due.” Thus, the AHO’s approach in receiving and considering briefs from

both parties and then deciding the case without oral argument did not form a basis for the AHO’s

disqualification as being “prejudiced” against Mr. Louie.

Moreover, it is well-settled in regard to recusal of judges for cause – and indeed codified

by the Tribes’ Business Council with respect to Tribal Court at least – that once a discretionary

ruling has been made in a given case, a party cannot wait until after a ruling adverse to himself

We note with some concern that the Supplementary Procedures state that the AHO “may be selected from a panel of [AHOs] retained by

CTEC [now CTFC]. . . .” Supplementary Procedures, Administrative Hearings, Appeals, Paragraph 15, at p. 3. Thus, since an AHO serves

essentially at the pleasure of CTFC, we wonder if such an AHO would be an impartial decision-maker. But since this issue was neither raised

nor briefed in this case, we do not address it here.

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and then move to disqualify the judge because the judge has been “unfair” in ruling against him.51

While there is no specific code section pertaining to AHOs, by analogy it makes no sense that a

request for disqualification be countenanced once a discretionary ruling – such as the AHO’s

ruling on CTFC’s motion to quash – has been issued.

Although in this court’s experience such attempts to disqualify a judge after a

discretionary ruling has been made are all too common, these attempts cannot be countenanced.

Otherwise, the “forum-shopping” problem would wreak havoc on the administration of justice.

Likewise, although the Colville Law and Order Code requires any affidavit of prejudice in the

Tribal Court system to be heard by another judge, we see no reason why this should be extended

to the AHO system, when, as here, a clearly discretionary ruling has already been made by the

AHO who, then, by refusing to recuse, denies the motion for recusal herself.

We thus conclude that no due process violation occurred when the AHO refused to recuse and

proceeded to hold the evidentiary hearing.

3. Since a full evidentiary hearing occurred before the AHO, Louie enjoyed

the benefit of notice and an opportunity to be heard, the two key

elements of due process.

Louie’s final argument is that he was not afforded due process because, among other

things, he was not allowed to receive copies of the recordings of the AHO’s proceedings as

provided in the Supplementary Procedures. Also part and parcel of his argument is that he

simply was not afforded due process because Tribal Court did not allow a direct appeal under the

APA. Additionally, he argued that the AHO determined the facts in the case in such a way that

his termination was upheld. Noticeably absent, however, from his argument is that the evidence,

disputed though it was, did not provide any basis for the AHO’s findings of fact and in turn her

conclusions of law leading to the upholding of his termination.

While we strongly disapprove of the fact that Mr. Louie has been unable to obtain copies

of the recordings of the hearing at his own expense, since this is explicitly provided in the

Supplementary Procedures, Administrative Hearings, Appeals, Paragraph 11,52 nevertheless, we

fail to see how, in this case, such a failure on the part of those conducting the hearing implicates

due process. This is because there is no argument that the AHO’s findings of fact are not

supported by substantial evidence. Additionally, there is simply no right to APA review in CTFC

terminations because of the EPM.

CTC 1-1-143 provides: “Any party to any legal proceeding . . . may accomplish a change of assignment of his case from one judge to

another upon filing an Affidavit of Prejudice with the Court, giving satisfactory reasons for the change. The Affidavit shall be in written form

and must be filed with the Court before any trial action whatever has been taken by the initial Judge. The initial Judge shall refer the affidavit

to another judge for decision.” (Emphasis supplied.)

“All proceedings shall be recorded, and either party may obtain a copy of the tapes at his/her own expense, except where the ALJ determines

that a portion or portions of the hearing must remain sealed to protect employee confidentiality.”

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As the parties have pointed out in their briefing, employer-employee relations, and

whether an employee is “at-will” – i.e, serving at the will of the employer -- or has some rights to

dispute and seek relief from an employment decision, are questions the answer to which

originating with the common law doctrine of master and servant. However, the “at-will” starting

point in the analysis of any employer/employee relationship based on employment policy manuals

and other public policy issues has been softened over the years in many jurisdictions. Here the

AHO properly relied on a seminal Washington case, namely, Thompson v. St. Regis Paper Co.,

102 Wn.2d 219, 685 P.2d 1081 (1984). We must emphasize that state case (common) law is to

be considered guidance for us only in the absence of Colville Tribal Code or case law.53 But the

AHO could thus be and, we agree, was in this instance properly persuaded by the rationale

enunciated in Washington’s Thompson v. St. Regis, supra. Indeed, a reading of this case is

instructive. Generally speaking, in the absence of a contract, an employee serves at the will of

the employer, who need give no reason for an employment decision adversely affecting the

employee.

Ibid., 102 Wn.2d at 228. As explained by the Washington court in Thompson:

[I]f an employer, for whatever reason, creates an atmosphere of fair

treatment with promises of specific treatment in specific situations and an

employee is induced thereby to remain on the job and not actively seek other

employment, those promises are enforceable components of the employment

relationship. We believe that by his or her objective manifestation of intent,

the employer creates an expectation, and thus an obligation of treatment in

accord with those written promises. See Restatement (Second) of Contracts,

§2 (1981) (promise is a manifestation of an intention to act or refrain from

acting in a specified way, so made as to justify a promise in understanding

that a commitment has been made).

Ibid., 102 Wn.2d at 230.

That opinion went on to clarify:

It may be that employers may not always be bound by statements in

employment manuals. They can state in a conspicuous manner that nothing

contained therein is intended to be part of the employment relationship and

are simply statements of company policy.

Id. (emphasis supplied).

Thus we note with rapt attention that the drafter of CTEC’s EPM’s Part I., “Manual

Objectives,” Paragraph C., “Use of Manual,” states: “This manual is to be used as a guide to

operations and does not constitute an employment contract or a commitment to employment of a

specific duration.” EPM at 3. And, Part V., entitled “Responsibility for Policies & Procedures,”

CTC § 1-2-11 provides: “In all cases the Court shall apply, in the following order of priority unless superseded by a specific action of the Law

and Order Code, any applicable laws of the Colville Confederated Tribes, tribal case law, state common law, federal statutes, federal common

law and international law.”

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states, “ . . . An individual situation . . . may be left to the discretion of the Chief Executive

Officer or his/her designee. . . . In the absence of specific written policy, management always

reserves the right to make decisions or take appropriate action in the best interests of the

company.” EPM, Part V.A., at 11. And, significantly, in relation to Mr. Louie’s claim that he

was denied a process of progressive discipline to which he was entitled, Part XII., “Discipline,”

Paragraph A., “Company Rules,” states in part:

Violation of CTEC enterprise policies or rules may result in disciplinary action up

to and including termination. CTEC may impose a more or less severe level of

discipline for any offense or violation deemed by the company to be particularly

serious.

EPM at 31. And Paragraph

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