Andre Pierre PICARD, Appellant,
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Andre Pierre PICARD, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP18-016, 8 CTCR 01
15 CCAR 01
[Michael Humiston for Appellant.
Weston Meyring for Appellee.
Trial Court Case No. CR-2018-41054]
Decided January 29, 2020.
Before Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Theresa
M. Pouley
Pouley, J.
SUMMARY
Appellant Andre P. Picard was charged with six counts of violation of
the Colville Tribes’ criminal laws. He was charged with Disobedience of a
Lawful Court Order (Domestic Violence), Battery (Domestic Violence),
Interfering with a 911 Call (Domestic Violence), Theft (Domestic Violence),
and two counts of Attempt to Commit Disobedience of a Lawful Court Order
(Domestic Violence). Defendant pled guilty to some counts and was found
guilty on two counts. He was sentenced on August 29, 2018 for a total of
1080 days with 260 suspended. The Court imposed five years of probation.
Appellant objected to the "stacked sentencing" in which consecutive
sentencing for multiple offenses resulted in a sentence of over 365 days as a
violation of the federal Tribal Law and Order Act. This appeal arises from the
claim that the Indian Civil Rights Act as amended by the Tribal Law and Order
Act does not allow sentencing for over one year. For the reasons stated in
this opinion, the panel disagrees.
STANDARD OF REVIEW
Whether a sentence of over 365 days violates the Indian Civil Rights
Act as amended by the Tribal Law and Order Act (TLOA) is a question of law
that is reviewed de novo. Desautel/Randall v. Colville Confederated Tribes,
13 CCAR 3, 7 CTCR 5 (2016); Frank v. Colville Confederated Tribes, 13
CCAR 10, 7 CTRC 7 (2016); Confederated Tribes v. Naff, 2 CCAR 50 (1995).
ISSUE
Does the Indian Civil Rights Act as amended by the Tribal Law and Order Act
of 2010 prohibit sentencing in excess of 365 days?
DISCUSSION
For the fifth time in three years this Court is faced with the question of
whether the 2010 amendment to Indian Civil Rights Act of 1968, 25 U.S.C. §§
1301 et seq., known as the Tribal Law and Order Act (TLOA), PL 111-211
(2010), restricts the Colville Tribal Court from issuing a total sentence in one
case stemming from multiple criminal law offenses to over 365 days in jail.
The plain language of TLOA, its legislative history and this Court's application
of its principles answers this question.
The TLOA was passed in 2010 as an amendment to the Indian Civil
Rights Act, to expand tribal authority in recognition of the fact that the best
and most effective intervention to address disproportionate crime in Indian
Country is by the Tribes themselves. The opening findings of the TLOA
support this conclusion and state: "(a) Congress finds that . . . (2) Congress
and the President have acknowledged that (A) tribal law enforcement officers
are often the first responders to crimes on Indian reservations; and (B) tribal
justice systems are often the most appropriate institutions for maintaining law
and order in Indian Country." 25 USC 2801(a)(2). The more sobering
findings of the Act are contained in "5(A) domestic and sexual violence
against American Indian and Alaska Native Women has reached epidemic
proportions; (B) 34 percent of American Indian and Alaska Native women will
be raped in their lifetimes; and (C) 39 percent of American Indian and Alaska
Native women will be subject to domestic violence; . . .". 25 USC (a)(5)(A-C).
As a result of these grave findings, Congress stated the purpose of TLOA
was to empower and expand, not contract, tribal authority.
The purposes of TLOA are in section (b) and state: The purposes of
this title are . . . (3) to empower tribal governments with the authority,
resources, and information necessary to safely and effectively provide public
safety in Indian country; (4) to reduce the prevalence of violent crime in Indian
country and to combat sexual and domestic violence against American Indian
and Alaska Native women; (5) to prevent drug trafficking and reduce rates of
alcohol and drug addiction in Indian country; . . .". 25 USC 2801(b)(3-5). As
a consequence of the findings and purpose of TLOA, tribal criminal authority
was expanded from its previous limits. The authority of Tribes’ and Tribal
Courts’ sentencing authority was expanded for each offense from 1 year in jail
and a $5,000.00 fine to three years in jail (up to a maximum of 9 years) and a
$15,000 fine.
Although TLOA was intended to expand tribal authority it has had the
undisputed effect of applying extra protections to criminal defendants in single
cases with multiple offenses when combined sentencing ("stacked") exceed 1
year. It certainly was unintended and, if section (b) which allows sentencing
up to three years and section (c) are read together, that intent is evident. 25
USC 1302 (b) and (c). However, the plain language of section (c) certainly
reads otherwise and our Court and other tribal courts (as well as most legal
scholars) interpreting this section have read TLOA to require extra efforts to
justify sentencing practices that were perfectly permissible prior to its
enaction. This unintended effect has been the cause of many tribal court
cases about whether sentences can exceed 1 year without the application of
TLOA protections.
When a tribe exercises sentencing authority beyond one year, TLOA
requires the tribe to meet a variety of requirements. A tribal court can subject
a defendant to a term of imprisonment greater than 1 year if the defendant is
provided: (1) the right of effective assistance of counsel; (2) indigent defense
by a bar licensed attorney; (3) a presiding judge to be licensed by any
jurisdiction and to have sufficient training in presiding over criminal
proceedings; (4) publicly available criminal laws, rules of evidence, rules of
criminal procedure, and rules governing the recusal of judges; and (5) the
court maintains a record of proceedings. 25 USC 1302(c)(1-5). Significantly,
the tribal courts hearing cases of consecutive sentencing totaling over one
year consistently apply the TLOA protections even though the Tribe itself has
not "adopted" the three-year sentencing (up to nine years) under tribal
statutory law.
TLOA itself has no mechanism for "approval" of tribal judicial or
legislative changes to their law. There is no provision in TLOA that states a
tribal legislature must "adopt" the provisions. Rather, TLOA is an amendment
to the Indian Civil Right Act that is applicable to any "Indian tribe in exercising
powers of self-government". 25 USC 1302(a). This general applicability is
reiterated in section (c) which states: "in a criminal proceeding in which an
Indian tribe, in exercising powers of self-government, imposes a total term of
imprisonment of more than 1 year. . .". 25 USC 1302(c). The plain language
of the statute and decades of opinions on the Indian Civil Right Act in our
tribal courts means that those provisions are applicable to the Tribes. TLOA
does not have to be adopted, it is "substantive law" that tribal courts are to
apply.
As early as 1984 this Court established that ICRA, and by necessity
its amendments, are applicable in tribal criminal proceedings. The Court
said:
The Colville Tribal Court has long recognized
the rights guaranteed in the ICRA in its criminal
cases. To disregard all the other civil rights
guaranteed in the ICRA would defeat its dual
purposes. "Tribal courts have repeatedly been
recognized as appropriate forums for the
exclusive adjudication of disputes affecting
important personal and property interests of
both Indians and non-Indians." The "substantial
and intended effect" of the ICRA on tribal courts
is to change the laws we apply in assessing
important personal and property rights of
individual members vis-à-vis their tribe and, at
the same time, furthering the Tribes' selfgovernment.
Stone v. Someday, 1 CCAR 9, 1 CTCR 14 (1984). The Court reiterated this
principle in Desautel/Randall and said: "It has been long-recognized by this
Court that the ICRA is applicable to the Tribes. It is a federal mandate to all
tribal governments, incorporating the basic principles of due process and
equal protection in the several tribal courts of the nation. We have noted in
our cases, too, that tradition and custom mandate a deference to due process
standards. See, e.g. CCT v. Meusy, 10 CCAR 62 (2011).
Tribal courts have consistently demonstrated they are up to the
challenge of interpreting federal law and balancing the rights of tribal criminal
defendants properly. This Court in Davisson v. Colville Confederated Tribes,
11 CCAR 13 (2012)(en banc) said: "Colville tribal law, with respect to due
process and equal protection, right of criminal defendants, has always been
protective as, if not more protective, than the federal Indian Civil Rights Act."
The Colville Tribal Court of Appeals particularly has been protective of the
rights outlined in the TLOA amendments to the Indian Civil Rights Act.
Our Court has made several important rulings on the applicability of
TLOA to Colville proceedings and the requirements that must be met. In
Desautel/Randall v. Colville Confederated Tribes, 13 CCAR 3, 7 CTCR 5
(2016) the court acknowledged the applicability of TLOA to consecutive
sentences for over one year and adopted the Federal Rules of Evidence to
comply with TLOA's requirement that there be publicly available evidence
rules. The Court went on to overrule a previous case on consecutive
sentencing to the extent it was contrary to that decision. In Frank v. Colville
Confederated Tribes, 13 CCAR 10, 7 CTRC 7 (2016), the Court applied the
Desautel/Randall requirements to vacate a judgment without the benefit of
the evidence rules. In Martinez v. Colville Confederated Tribes, 13 CCAR 12,
13 CTCR 8 (2016), the court applied the Desautel/Randall rule and ruled as
moot the issue of the sufficiency of the judge's qualifications because the
evidence rules used were not then available. In Carson v. Colville
Confederate Tribes, 13 CCAR 25, 7 CTCR 12 (2017), the court found that the
rules of evidence were properly available and thus the requirement of TLOA
were met. This line of cases demonstrates clearly that TLOA, as an
amendment to the Indian Civil Right Act, is applicable to consecutive
sentencing exceeding one year. The cases also declare that the provisions of
TLOA can and are being met through either tribal statutory law or by tribal
court caselaw. Both statutory and caselaw are an exercise of the Tribes
powers of self-government. TLOA requirements are a tribal obligation, both a
judicial and a legislative responsibility.
A general review of the requirements of TLOA demonstrates that the
Colville Tribes in a criminal case with consecutive sentencing that exceeds
one year can meet the TLOA requirements. The Colville Tribes provides
indigent criminal defense services in CTC 2-1-100. The presiding judge was
not challenged, but the Colville Tribal Court has several licensed judges that
meet the legal requirement of sufficient legal training to preside over criminal
proceedings. There are publicly available criminal laws and regulations.
CTC 1-1-322 requires copies of the law be publicly available and the Tribes'
laws are available online through the Colville Tribes official website.
Similarly, Colville Court of Appeals decisions are publicly available in person
or through the Colville Court of Appeals website. Desautel/Randall adopted
the Federal Rules of Evidence which are publicly available1. Rules of
criminal procedure are available in CTC 1-2 (Rules of Court) and CTC 2-1
(Rules of Procedure for criminal actions). In addition, the Tribes correctly
points out these rules are supplemented in many other areas of tribal law
including CTC 1-1-140 (Sessions of Court), CTC 1-1-220 to 223 (relating to
jurors), CTC 1-1-250 (Subpoenas) and CTC 1-1-404 (Contempt procedures).
There are also rules for recusal of the judge in CTC 1-1-143 which is
supplemented by Colville caselaw. See, Peone v. Colville Confederated
Tribes, 13 CCAR 27, 7 CTCR 13 (2016). The final requirement of a record of
proceedings is met by CTC 1-12-12 and the longtime practice of Colville tribal
courts.
TLOA does not require a particular format for rules of criminal
procedure, criminal laws, recusal of judges or recording of proceedings.
Rather, as with ICRA, it allows the tribe to decide if those rules are adequate
to meet the requirements. This case is not the same as Desautel/Randall
where as early as 2002, the Court noted a lack evidence rules. Here there is
a complete set of criminal procedure rules entitled that in CTC 2-1.
Furthermore, Appellant does not challenge a particular criminal procedure
rule or the absence of a rule as was argued in Desautel/Randall. Appellant
does not give even a hint of what criminal procedure rule might be missing.
This issue was not raised at the trial court. On its face the rules of criminal
procedure and other applicable court rules are sufficient to constitute "publicly
available rules of criminal procedure" as required by TLOA.
Appellant makes one final argument. Appellant argues that, without
evidence or raising the issue before the trial court, that the Colville
Correctional Facility is an insufficient long-term incarceration facility. Although
not specified by Appellant, section (d) of TLOA does address sentences. 25
USC 1302(d). Under this section it says a tribal court "may" require a
defendant to serve in one of 4 types of facilities. 25 USC 1302(d)(1)(A-D). It
also says the court "may" require the defendant to serve another alternative
form of punishment as determined by the tribal court judge. 25 USC 1302(d)
(2). Because the Appellant raises this issue for the first time on appeal, there
are insufficient facts to determine the nature of his objection to the facility.
This Court will not and cannot determine this factual issue raised for the first
time on appeal. (Williams v. CCT, 5 CCAR 22 (1999) "We cannot, nor should
be attempt to, address issues that have not been fully developed before the
Trial Court."; Leaf v. CIHA, 6 CCAR 53 (2002) "It is clear that before an
Appellant can bring a matter before the Court of Appeals it must be fully
litigated at the Trial Court."; Finley-Justus v. CCT, 7 CCAR 11 (2003) "As a
general rule issues may not be raised for the first time on appeal."; and
Wilson v. Gilliland, 8 CCAR 64 (2006) "The Tribe moved to strike the
argument as an issue improperly raised for the first time on appeal. The Court
agreed and entered an order striking the opening brief on September 29,
2004."
CONCLUSION
The Appellant’s Judgment and Sentence entered on 08-29-2018 is
AFFIRMED and this matter is remanded to the Tribal Court for action
consistent with this opinion.
Melissa Louis WILLIAMS, Appellant,
vs.
Colville Confederated Tribes, Appellee.
Case No. AP19-014, 8 CTCR 02
15 CCAR 06
[Mark Carroll, for Appellant.
Marty Rapp, for Appellee.
Trial Court Case No. CV0OC02018-41035]
Filed June 6, 2019. Decided March 11, 2020.
Before Michael Taylor, Presiding Justice; Dave Bonga and R. John Sloan Jr.,
Associate Justices.
Taylor, J.
PROCEDURAL BACKGROUND
On February 20, 2018, Melissa Williams, Appellant, filed her First
Amended Complaint based on provisions of the Colville Tribal Civil Rights
Act, CTC §§ 1-5-1, et. seq., (CTCRA) with the Colville Tribal Court CV-OC2018-41035. On March 07, 2018, the Tribes filed Notice of Appearance on
behalf of the Confederated Tribes of the Colville Reservation along with the
Tribes’ Motion to Dismiss. Colville Tribal Court CV-OC-2018-41035.
On March 21, 2018, Ms. Williams filed her response Memorandum to
Tribes’ Motion to Dismiss. Colville Tribal Court CV-OC-2018-41035. Ms.
Williams’ response memorandum cited to CTEC v. Orr. 5 CCAR 1 (1998). In
addition, Ms. Williams’ legal memorandum provided as an exhibit a copy of
the Tribes’ Insurance Policy. In part, Ms. Williams’ sought relief because the
Tribes’ failed to pay Ms. Williams’ unused vacation pay. Prior to February 20,
2018, Ms. Williams’ spokesperson on February 01, 2018, wrote a letter to the
Tribes’ ORA requesting payment for Ms. Williams’ vacation pay. The Tribes’
ORA, answered February 05, 2018, "Please be advised this request is
denied." See Exhibit D to Ms. Williams’ Response Legal Memorandum to
Tribes’ Motion to Dismiss.
On April 11, 2018, the Tribal Court held a hearing on the Tribes’
Motion to Dismiss.
On July 15, 2018, the Tribal Court dismissed Colville Tribal Court CV-OC2018-41035. Ms. Williams’ timely filed her appeal to this Court.
On February 17, 2019, this Court issued its Opinion and Order,
Williams v CCT, AP1812 (2019), dismissing the claim that she had been unlawfully dismissed from
her elected position as a member of the Colville Business Council, and
remanding the issue of Ms. Williams’ unpaid "financial compensation for
unused vacation hours owed to Appellant, we return this matter to the Tribal
Court for further review… the Tribal Court in its review of this portion of
Appellant’s complaint should consider, among any other relevant issues
raised by the parties, the meaning of CTC § 1-5-8…."
On May 28, 2019, the Tribal Court, sua sponte, without a hearing and
without considering "any other relevant issues raised by the parties" again
dismissed Colville Tribal Court CV-OC-2018-AP18-41035.(2019).
STANDARD OF REVIEW
The material facts in this second Appeal in this dispute are not
contested. The issue regarding the sua sponte dismissal of Appellant’s
complaint is a matter of law. Accordingly the standard of review is de novo.
Colville Tribes v Naff, 2 CCAR 50, 19 CTCR 08 (1995).
ISSUES FOR REVIEW
Issue 1. Did the Tribal Court err in dismissing sua sponte, Appellant’s
claim regarding compensation for unused vacation leave filed under CTC § 15-8 of the Colville Tribal Civil Rights Act?
Issue 2. Did the Tribal Court err in dismissing sua sponte Appellant’s claim
regarding compensation for unused vacation leave without taking evidence and
hearing argument regarding the application and requirements of CTC § 1-5-1, et.
seq.?
DISCUSSION
The Colville Tribal Civil Rights Act (CTCRA) provides protection for
the civil rights, as defined by the Act, of persons coming within the jurisdiction
of the Tribes. The Act provides a waiver of tribal immunity for injunctive and
declaratory relief, CTC § 1-5-5, when a claimant successfully shows that
specific rights, defined by CTC § 1-5-2, have been violated by an executive or
employee of any governmental agency acting within the jurisdiction of the
Tribes. CTC § 1-5-3. Tribal immunity with regard to any financial remedy for
violation of these specific rights is clearly not waived CTC § 1-5-5; with one
very limited, indirect, and fact-based exception, i.e., CTC § 1-5-8.
In CTC § 1-5-8, the Tribal code allows suit in Tribal Court for damages
when the claimant alleges a violation of the rights defined in the Act and
presents to the Court an "active and enforceable policy of liability insurance."
Such damages are limited by the code to the full amount of any coverage
provided by the policy for the successful prosecution of a claim alleging the
violation of a code defined right, or rights, alleged by the claimant.
CTC § 1-5-8 may provide a remedy by allowing claims against an entity, the
Tribes’ insurer, which by contract or otherwise, does not benefit from the
defense of tribal sovereign immunity. The answers to questions regarding
this section and its scope must be provided in the first instance by the Tribal
Court pursuant to the presentations of the parties and its own analysis of the
law.
In this Appeal, the Appellant has alleged, and Appellee did not deny,
that Appellant submitted to the Tribal Court a copy of policy of liability
insurance, issued to the Tribes which may provide coverage for violation of a
code defined, civil right. This presentation of the insurance policy pursuant to
CTC § 1-5-8, requires the Tribal Court to enter into a process of fact finding
and legal analysis, using the processes established by our code, to answer
questions regarding the facts and law relevant to this dispute including, but
not limited to, the following.
1. Does the claim(s) in the Appellant’s complaint fall within the defined
right(s) protected by the CTCRA?
2. Does CTC § 1-5-8 provide a general waiver of immunity when, to
the level of coverage in any such policy, an active and enforceable policy is
presented to the Court?
3. Was an "active an enforceable policy of liability insurance" covering
the Tribes for violation of a code defined civil right, presented to the Court?
4. Does any presented insurance policy covering the Tribes,
contractually prevent the insurer from raising the defense of sovereign
immunity as a defense to any claim?
5. Was the claim of Appellant in this case tendered to any tribal
insurer to determine any insurance coverage for this claim?
6. If appellant’s claim was tendered to any liability insurer to determine
coverage, what is the opinion of insurer regarding coverage of Appellant’s
claim?
7. With regard to the claim of Appellant, did the Colville Business
Council, or any person or entity formally authorized by the Colville Business
Council, formally on the record, act to direct the liability insurer of the Tribes
to raise tribal sovereign immunity as a defense to Appellant’s claim.
DECISION AND ORDER
The decision of the Tribal Court dismissing Appellant’s claim is
reversed, and this matter is remanded to the Tribal Court for proceedings
consistent with the Opinion and Order.
Harry BESSETTE, Appelant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP18-019, 8 CTCR 03
15 CCAR 09
[Mark J. Carroll, for Appellant.
Christopher Kerley, for Appellee.
Trial Court Case No. CV-OC-2015-38326]
Decided January 16, 2020. Reconsideration decided May 26, 2020.
Before Theresa M. Pouley, Presiding; David C. Bonga and Rebecca Baker,
Associate Justices
Pouley, J.
SUMMARY
Appellant Harry Bessette appeals a Trial Court ruling dismissing a
variety of claims arising from his 2012 dismissal from employment. For the
reasons stated in this opinion the ruling of the Trial Court on summary
judgment dismissing Appellant’s claims is AFFIRMED.
Appellant was dismissed from employment with the Confederated
Tribes of the Colville Reservation (Tribes) in 2012. He properly appealed that
ruling to the Administrative Law Judge (ALJ) and his claims were denied. He
properly appealed to the Colville Tribal Court and the Court reversed and
remanded the case to the Administrative Law Court. The Tribes appealed
this ruling in May of 2014. Appellant properly appealed to the Colville Tribal
Court of Appeals and the Court of Appeals affirmed the ruling of the Trial
Court in June of 2015. Confederated Tribes v. Bessette, 12 CCAR 29
(2015). The Court of Appeals agreed with the Trial Court’s ordered remand to
the Administrative Law Court.
The case was remanded to the Administrative Law Court and after
several procedural steps was finally heard in November of 2018. The
Administrative Law Judge issued its decision upholding Appellant’s
termination on December 20, 2018. Appellant filed this action in the Colville
Tribal Court and the Court ruled on cross motions for summary judgment on
October 22, 2018. The Trial Court ruled on summary judgment that
Appellant’s due process claims had no factual basis and the remaining claims
of unlawful retaliation, unlawful discharge, negligence, malpractice, and
breach of contract were barred by sovereign immunity. This appeal followed
and both parties briefed the issues before this Court. For the reasons stated
in this opinion the Court of Appeals agrees with the lower court and AFFIRMS
the Trial Court ruling.
STANDARD OF REVIEW
Whether sovereign immunity bars a suit or claim under the Colville
Civil Rights and Colville tribal law is a question of law that is reviewed de
novo. Similarly, whether Appellant received proper due process is a question
of law to be reviewed de novo. Confederated Tribes v. Naff, 2 CCAR 50
(1995), Confederated Tribes v. Bessette, 12 CCAR 29 (2015).
ISSUES
1. Did the Trial Court err in dismissing Appellant’s claims as being
barred by sovereign immunity?
2. Did the Trial Court err in dismissing Appellant’s due process
claims?
DISCUSSION
1. This Appeal again raises the issue of the scope of the Colville Tribal
Civil Rights Act’s (CTCRA) waiver of sovereign immunity. CTC 1-5 et. seq.
The rights protected in the CTCRA are listed in CTC § 1-5-2 and include
freedom of religion, free speech, press and assembly, a right against
unreasonable search and seizures, restricting double jeopardy and the taking
of property, granting criminal defendants protection and recognizing the right
to equal protection and due process of law. CTC § 1-5-2 (a-j). Actions to
protect those rights are by declaratory and injunctive relief in CTC § 1-5-3.
When actions claiming a violation of those right are made "the sovereign
immunity of the Colville Tribes is hereby waived in the Courts or the Tribes for
the limited purpose of providing declaratory and injunctive relief". CTC § 1-55. Damages can only be obtained under CTC § 1-5-8 which says:
Notwithstanding any other provision of this
Chapter or the Colville Tribal Code; with respect
to any claim made under this Chapter, in the
Courts of the Confederated Tribes, for which the
Tribes carries an active and enforceable policy
of liability insurance, suit may be brought for
damages up to the full available amount of the
coverage provided in the insurance policy;
provided, no judgment on any such claim may
be for more than the amount of insurance
carried by the Tribes; and further provided, any
such judgment against the Tribes may only be
satisfied pursuant to the provisions of the policy
or policies of insurance then in effect.
These sections read together provide a limited waiver of sovereign
immunity for claims made under "this Chapter" for damages where there is an
active insurance policy. The Court in Gibson v. Colville Confederated Tribes,
14 CCAR 39 (2019), held that a waiver of this statutory formulation does not
waive the inherent power of immunity in the common law of the Tribes and
that a common law waiver of immunity must otherwise be shown.
Applying these principles to the Appellant's claims, we find sovereign
immunity bars those claims not brought as a civil rights violation. This Court
declines to adopt the Appellant's argument that a Chapter in the Colville Tribal
Civil Rights Code meant to protect and remedy civil rights violations should
be extended to apply to all civil suits in which the Tribes carries insurance
coverage. Such an expansive interpretation would undermine the express
language in the statute. CTEC v. Orr, 5 CCAR 1 (1998) supports this
interpretation. The Court in Orr stated:
It is our position that for any action to be
brought against the Tribes there must be an
express and unequivocal waiver of sovereign
immunity. Colville Confederated Tribes v. Naff,
2 CTCR 08, 22 ILR 6032 (1995). Thus, in order
to defeat the sovereign immunity, claim herein,
Orr's only position is to show that under the
Tribal Civil Rights Act, CTC Chapter 1-5, CTEC
was subject to the waiver of immunity because
of violations of Orr's due process.
Orr at 3-4.
The waiver of sovereign immunity applies equally to tribal officials
named in the suit. CTC § 1-1-6 specifically states that sovereign immunity
applies to the "officers and employees" of the Tribes in performing their
"official duties". Appellant's reliance on Lewis v. Clarke, 581 US ____ (2017)
is misplaced. In Lewis the court held that in a negligence action for a traffic
accident off the reservation a tribal employee could be held liable because the
judgment would not operate against the Tribe. Of course, that is not the
situation in this matter. In this case the Tribe is the real party in interest and
only waived its statutory immunity as outlined above. The Trial Court
correctly ruled that sovereign immunity barred these claims.
2. The remaining issue is whether the Trial Court erred in dismissing
Appellant’s due process claim. We held previously and reiterate that "Due
process is that which is due; notice and opportunity to be heard."
Confederated Tribes v. Bessette, 12 CCAR 29 (2015). Given the procedural
history of this case, we find Appellant has been given ample due process. He
has had two hearings before the Administrative Court, two appeals in the
Colville Tribal Court and now two reviews before the Colville Court of
Appeals. These more than sufficiently constitute proper due process.
CONCLUSION
The Order on Motion to Dismiss by the Trial Court entered on October
22, 2018 is AFFIRMED.
Kelly JERRED, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee,
Case No. AP19-011, 8 CTCR 04
15 CCAR 12
[Payton Garcia, Spokesperson, for Appellant.
Taima Carden, Spokesperson, for Appellee.
Trial Court No. CR-2018-41148]
Decided June 11, 2021.
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice Mike
Taylor
Dupris, CJ
SUMMARY
Seven (7) criminal charges were filed against Appellant on November
15, 2018 for three counts of Misuse of Public Funds, three counts of Fraud,
and one count of Forgery. All charges related to actions taken with her sister
Deanna Heath, the appellant in the companion case (AP 19-012). All charges
related to purchasing tires with tribal funds for personal use. These criminal
complaints had been filed previously but had been dismissed without
prejudice and refiled . Appellant Jerred was arraigned on December 11,
2018.
The first case was dismissed without prejudice, and the Tribes refiled
the charges on November 15, 2018, one day before the statute of limitations
expired. At her arraignment on December 11, 2018, the Court denied Jerred’s
motion to dismiss. On March 22, 2019 the Court granted the Tribes’ Motion to
Join the case with the Heath cases, setting the trial to start on March 27,
2019.
At the jury trial Jerred was convicted of six of the seven charges on
April 1, 2019, and judgment and sentence was entered on May 3, 2019. She
filed a timely appeal on May 31, 2019. Appellant raises two issues on Appeal:
(1) Did the Trial Court err in joining the case with the Heath case (AP19-012)?
and (2) Did the Court violate Appellant’s due process by failing to dismiss
regarding the speedy trial rule?
We found no Trial Court error, based on the reasoning below, and
affirmed the Trial Court.
Standard of Review
The issues raised are questions of law. Our review is de novo. CCT v.
Naff, 2 CCAR 50, (1995).
Issues
1) Did the Trial Court err in joining the case with CCT v. Heath, Trial Court
Case Number CR-2018-41147?
The Motion for Joinder was filed by Appellant on February 11, 2019.
Judge Tremaine denied Appellee’s request to join the case with the Heath
case on March 1, 2019, stating the motion was untimely and should have
been raised at the time of the filing of the complaint. Appellee filed a Motion to
Reconsider on March 4, 2019, stating the request to join the cases was filed
timely under CTC Section 1-2-9 but was not heard by Judge Nomee on
February 25, 2019, who reset it for Judge Tremaine on February 28, 2019.
Appellee’s Motion to Reconsider the Order denying the joinder cited
the legal bases for granting the motion, i.e. it was judicially economical
because of the size of the jury pool to be called for both cases; many of the
witnesses were same; there was a common purpose of the underlying
offenses; and there were common jury instructions to be given. Appellant did
not respond to the Motion to Reconsider at the Trial Court. On March 22,
2019, Judge Jordan2 granted the Motion to Reconsider and allowed the
cases to be consolidated.
Appellant first relies on the arguments she made in the initial case
which was dismissed without prejudice. For example, she argues the Court
considered the Federal Rules (FRCPR 13) in determining the authority of the
Court to consider the Motion to Join the cases, then argues that we have held
the Federal Rules did not apply in our cases, citing Waters v. CCT, 3 CCAR
35 (1996). Since the Waters case, we have used the Federal Rules of
Criminal Procedure (FRCP) as guidance in cases, thereby making Appellant’s
reliance on this argument misplaced. See, Sweowat v. CCT, 5 CCAR 42
(2001) and Buckman v. CCT, 8 CCAR 100 (2006). We have also used the
Federal Rules o Evidence (FRE) as guidance before the Tribes enacted its
own Rules of Evidence at CTC, Chapter 1-9. See Desautel/Randall v. CCT,
13 CCAR 3 (2016).
Appellant next argues that to consolidate the cases would "confuse
the jurors," of which, she argues, there are plenty to draw from in a
membership pool of 9,520 tribal members. She cites no legal authority for us
to review regarding confused jurors. We do not agree with this argument.
Lastly, Appellant argues that Judge Jordan should not have ruled on the
Motion to Reconsider when it was Judge Tremaine who issued the first order
denying the joinder request. Appellant cites Sonnenberg v. Fry, 4 CCAR 3
(1997). As Appellee points out, Sonnenberg is distinguishable from this case.
In Sonnenberg the first Judge made a ruling not to sanction Sonnenberg, and
Judge Fry disagreed with that decision, so she immediately went back into
Court to change the decision and imposed sanctions. We held Judge Fry
could not initiate her own court proceedings for a case in which she disagreed
with the first judge’s decision.
In this case, Judge Jordan did not enter an order because she
disagreed with Judge Tremaine’s order. She entered an order on the Motion
to Reconsider when it was scheduled on her docket, in the regular course of
business. Further, Appellant waived her arguments by failing to challenge the
Motion to Reconsider. We find Appellant has failed to meet her burden on this
issue and affirm the Trial Court.
2. Did the Court violate Appellant’s due process by failing to dismiss
regarding the speedy trial rule?
Appellant’s basic argument on this issue seems to be that the speedy
trial rule as set out in CTC Section 2-1-102, was violated because she had
been criminally charged first in 2018, and although those charges were
subsequently dismissed without prejudice, the time she was under those
charges should be counted in the time for the speedy trial requirements.
Appellant further argues that being recharged subjects her to double
jeopardy.
Neither of the arguments of Appellant have validity. The speedy trial
time started when Appellant was arraigned on December 11, 2018, not when
the first time the charges were filed. As Appellee points out, Appellant did not
appeal the dismissal without prejudice on the first charges. As for the double
jeopardy argument, Appellant has misstated the ruling in Serfass v. U.S., 420
U.S. 377 (1975). It refers to subsequent convictions on the same charges, not
subsequent filings of the same criminal charges when the first were
dismissed without any trials or convictions on the charges. Serfass found
"...an accused must suffer jeopardy before he can suffer double jeopardy." at
p 393. We find Appellant has not met her burden on this issue.
Conclusion
In conclusion, we find the Trial Court did not err by joining this case
with Heath. Further, there is no speedy trial violation, nor is there a double
jeopardy violation.
We AFFIRM and REMAND.
It is so ORDERED.
Deanna HEATH, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee,
Case No. AP19-012, 08 CTCR 05
15 CCAR 15
[Michael Humiston, Spokesperson, for Appellant.
Taima Carden, Spokesperson, for Appellee.
Trial Court Case No. CR-2018-41147]
Decided June 21, 2021
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice
Michael Taylor
Dupris, CJ
Summary
On June 13, 2018 Appellant Heath was criminally charged with (I)
Aiding and Abetting Misuse of Public Funds; (II) Aiding or Abetting Fraud; and
(III) Forgery in violation of CTC §§ 3-1-132, 3-1-48, and 3-1-47 respectively.
She made her first appearance on July 16, 2018. Appellant’s case was
eventually consolidated with the companion case, CCT v. Jerred, AP19-011 at
the trial level, and continued a number of times for various reasons. Appellant
never waived her speedy trial rights under CTC Section 2-1-102, and at
pretrial hearing on October 15, 2018, the Court granted Appellant’s Motion to
Dismiss, and dismissed the charges without prejudice. Appellee refiled the
charges before the statute of limitations ran out on November 15, 2018.
Procedurally, on March 1, 2019 the Court denied Appellant’s Motion to
Dismiss, and denied Appellee’s Motion to Join Appellant Heath’s case with
Appellant Jerred’s case, a companion case in AP19-011. On March 4, 2019
Appellee filed a Motion to Reconsider the denial of the joinder of the cases.
The matter was heard before a different judge who granted the motion to
reconsider and ordered joinder of the cases on March 22, 2019.
Appellant was found guilty of all three charges by jury trial, which was
held between March 27-29, 2019. Judgment and Sentence were entered by
the Court on May 3, 2019 and Appellant filed a timely appeal on May 31,
2019.
As in the companion case of Jerred v. CCT, AP19-011, the issues
raised on appeal are (1) Did the Trial Court err in joining the case with CCT v.
Jerred, Trial Court Case Number CR-201841148? and (2) Did the Court violate Appellant’s due process by failing to
dismiss regarding the speedy trial rule?
Standard of Review
The issues raised are questions of law. Our review is de novo. CCT v.
Naff, 2 CCAR 50, (1995).
Issues
1) Did the Trial Court err in joining the case with CCT v. Jerred, Trial Court
Case Number CR-2018-41148?
The Motion for Joinder was filed by Appellant on February 11, 2019.
Judge Tremaine denied Appellee’s request to join the case with the Jerred
case on March 1, 2019, stating the motion was untimely and should have
been raised at the time of the filing of the complaint. Appellee filed a Motion to
Reconsider on March 4, 2019, stating the request to join the cases was filed
timely under CTC Section 1-2-9 but was not heard by Judge Nomee on
February 25, 2019, who reset it for Judge Tremaine on February 28, 2019.
Appellee’s Motion to Reconsider the Order denying the joinder cited
the legal bases for granting the motion, i.e. it was judicially economical
because of the size of the jury pool to be called for both cases; many of the
witnesses were same; there was a common purpose of the underlying
offenses; and there were common jury instructions to be given. On March 22,
2019, Judge Jordan3 granted the Motion to Reconsider and allowed the
cases to be consolidated.
Appellant rests her argument on this issue on an alleged procedural
error. She states that Appellee brought the Motion to Reconsider the joinder
before a different judge, which was tantamount to "judge-shopping," in
violation of her due process rights. She states the proper procedure would be
for Appellee to have filed an interlocutory appeal or an appeal after the trial
was over, citing CCT v. LaCourse, 1 CCAR 2 (1982).4 Appellant offers no
proof that Appellee was "judge-shopping." It is an accusation without
foundation and not a legal argument to support the issue of joinder. Further,
Appellant offers no legal arguments on the issue of joinder for the Court to
review.
On the other hand, Appellee has presented us with standards to
review, with legal authority to support its arguments. We can review standards
for judicial economy as well as a review of whether the joinder would
substantially prejudice Appellant. Appellee directs us to the
Federal Rules of Criminal Procedure (FRCP), Rules 8 and 13 for guidance.
We have often looked to federal rules for guidance when our laws do
not provide a specific rule or law to follow. See, eg., Sweowat v. CCT, 5
CCAR 42 (2001) and Buckman v. CCT, 8 CCAR 100 (2006). We have also
used the Federal Rules o Evidence (FRE) as guidance before the Tribes
enacted its own Rules of Evidence at CTC, Chapter 1-9. See
Desautel/Randall v. CCT, 13 CCAR 3 (2016).
In this case, Judge Jordan did not enter an order because she
disagreed with Judge Tremaine’s order. She entered an order on the Motion
to Reconsider when it was scheduled on her docket, in the regular course of
business. We find Appellant has failed to meet her burden on this issue and
affirm the Trial Court.5
2) Did the Court violate Appellant’s due process by failing to dismiss
regarding the speedy trial rule?
Appellant’s basic argument on this issue seems to be that the speedy
trial rule as set out in CTC Section 2-1-102, was violated because she had
been criminally charged first in 2018, and although those charges were
subsequently dismissed without prejudice, the time she was under those
charges should be counted in the time for the speedy trial requirements.
Appellant further argues that being recharged subjects her to double
jeopardy.
Neither of the arguments of Appellant have validity. The speedy trial
time started when Appellant was arraigned on December 11, 2018, not when
the first time the charges were filed. Appellant did not appeal the dismissal
without prejudice on the first charges. Appellant makes a cursory comment in
her conclusory remarks that her equal protection and due process rights were
violated, and that "[r]etrying her in [this case] thus constitutes double
jeopardy...."
Appellant has offered a paucity of legal authority for her arguments.
As for the double jeopardy argument, "...an accused must suffer
jeopardy before he can suffer double jeopardy." Serfass v. U.S., 420 U.S.
377, 393 (1975). Double jeopardy refers to subsequent convictions on the
same charges, not subsequent filings of the same criminal charges when the
first were dismissed without any trials or convictions on the charges. We find
Appellant has not met her burden on this issue.
Conclusion
In conclusion, we find the Trial Court did not err by joining this case
with the Jerred. Further, there is no speedy trial violation, nor is there a
double jeopardy violation.
We AFFIRM and REMAND.
It is so ORDERED.
Joe PEONE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, et. al, Appellees.
Case No. AP17-005, 8 CTCR 06
15 CCAR 19
[Mark Carroll, Spokesperson, for Appellant.
Christopher Kerley, Spokesperson, for Appellee.
Trial Court Case No. CV-OC-2015-38307]
Decided August 9, 2021.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice
Michael Taylor
Dupris, CJ
This matter came before the Court on an Appeal filed on August 11,
2017 in which Joe Peone, Appellant (Appellant) timely appealed an Order on
Motion for Summary Judgment entered by the Trial Court on July 17, 2017
against him and for the above-named Appellees. Appellant challenges the
Trial Court’s findings that his claims are (1) barred by sovereign immunity;
and (2) that he doesn’t have an actionable claim under the Tribes’ Civil Rights
Act, CTC, Chapter 1-5. Based on the reasoning below, we affirm the Trial
Court’s Order.
PROCEDURAL SUMMARY
Appellant was terminated from his position as Program Director of the
Colville Tribes Fish and Wildlife Department on November 28, 2012. A
challenge to the basis for his termination has been in the Courts since this
time. He has been before the Administrative Court, the Trial Court and this
Court, including another case before this Court on the same issues.6
Appellees’ filed Motion for Summary Judgment, which the Trial Court granted
on July 17, 2017. The Trial Court held first that sovereign immunity barred the
claims of Appellant, and that there were no actionable claims against Dana
Cleveland and Francis Somday in their individual capacities.
The Trial Court further held that the Tribes’ Civil Rights Statute, CTC,
Chapter 5-1, provides a limited waiver of sovereign immunity for declaratory
relief only for violations of CTC§ 1-5-2 (a)-(j). It further held that monetary
remedies under CTC §1-5-8 were limited to violations under CTC§ 1-5-2 (a)(j).
As for Appellant’s cause of action A, Unlawful Retaliation, the Trial
Court held it was barred by the terms of limitations on such actions in the CTA
Employment Policy Manual, (EPM) which required Appellant to file his
request for relief within one (1) year of his termination. He was terminated on
November 29, 2012, and he filed his claim for wrongful termination on
November 15, 2015. The Tribes, the Trial Court held, adopted the EPM and
its limited waiver "must be strictly construed and enforced." Order on Motion
for Summary Judgment, at page 3.
Further, the Trial Court held that as for Appellant’s claims for relief
regarding alleged procedural defects in the actions and/or inactions of
Appellees’ in his dismissal were not supported by sufficient allegations to
establish a civil rights violation, and, therefore were barred by sovereign
immunity. Finally, as for cause of action F, a claim for a due process violation,
the Trial Court held was still pending under CV-OC-2013-36088, and AP1208, and dismissed it from this case.
ISSUES
1. Did the Trial Court apply the correct standard for summary judgment ?
2. Did the Trial Court apply the correct standard for sovereign immunity under
the Tribes’ Civil Rights Statute, CTC, Chapter 1-5?
STANDARD OF REVIEW
Both issues are questions of law. We review de novo. Naff v. CCT, 2
CCAR 50 (1995).
DISCUSSION
SUMMARY JUDGMENT
The accepted standard for ruling on motions for summary judgment is
whether there is any genuine issue of material fact that supports going
forward with the cause of action. The moving party has the first burden of
proof on this issue, with deference given to the nonmoving party. The burden then shifts to the non-moving party if the moving
party has established sufficient argument to grant the motion. The Court
reviews all the pleadings filed at the time, including briefs and legal
memoranda on the issue of genuine issues of material facts.
Appellant has cited several Court of Appeals cases to support his
claim that a summary judgment should not have been granted. However,
none of the cases he has cited are relevant to the issue. The Trial Court held
that Appellant made assertions to his causes of action but did not support
them with sufficient legal authorities. Assertions alone are insufficient to meet
his burden of proof. Upon review of all that the Trial Court had before it, we
agree with the Trial Court’s decision. We affirm.
SOVEREIGN IMMUNITY AND THE TRIBAL CIVIL RIGHTS ACT
Appellant seeks to recover alleged damages under CTC, Chapter 5-1,
for his termination from employment with the Colville Tribal Fish and Wildlife
Department. He has been seeking this remedy since his termination in 2012,
and in two separate court cases, both based on the same issues. The crux of
his arguments are that (1) he was wrongfully terminated in violation of his due
process rights under CTC § 1-5-2; (2) the Tribes has waived sovereign
immunity in such instances under CTC §§ 1-5-3 and 5; and (3) although
general relief is declaratory and/or injunctive relief, CTC § 1-5-5 and 8 allow
for some monetary relief, under certain circumstances.
Appellees first claim that the general principles of sovereign immunity
bar Appellant’s claims. Appellees do recognize that CTC Chapter 5-1 allows
for a limited waiver of its sovereign immunity, but says the limited waiver is for
the specific grounds set out in CTC § 1-5-2 (a)-(j), and that none of the claims
made by Appellant are found in this sections.
We have addressed the issue of recouping monetary damages under
the Tribes’ insurance policies through the Civil Rights Statute before but have
not yet had a case in which we have had to set specific standards. CTEC v.
Orr, 5 CCAR 1 (1998). The facts alleged in the several causes of action
brought in this case do not necessitate a ruling to set such standards.
As stated earlier, some of the causes of action are barred by the time
limitations set out in the EPM, as adopted by the Tribes; some are still being
reviewed under a case filed before this case, which are still supposed to be
under review by the Administrative Judge and/or Trial Court (AP12-08); and
some of them are not CTC § 1-5-2 claims.
As Appellees point out, Appellant is arguing that CTC § 1-5-8 is a
waiver of any claim against the Tribes and its officials. It only is a limited
waiver for violations of Chapter 1-5, not for any general claim. Appellant
seems to bootstrap any and all his claims to CTC § 1-5-2 in an attempt to
access the Tribes’ insurance policy. The Trial Court ruled correctly that
sovereign immunity barred his actions to do so. We affirm.
What is not answered by this opinion is what are the parameters of
claims that can be made under CTC Chapter 1-5. We don’t necessarily
accept the Trial Court’s findings that these claims are as restrictive as it
found. We will wait for the appropriate case to further define what rights are
protected, what rights of actions are reviewable, and when does the limited
waiver of sovereign immunity apply.
Based on the foregoing, now, therefore
It is ORDERED the Trial Court’s Order of July 17, 2017 on granting
Appellees’ motion for summary judgment is AFFIRMED and this matter is
REMANDED to the Trial Court.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Jered S. PICARD, Appellee.
Case No. AP21-006 IA, 8 CTCR 07
15 CCAR 22
[M. Vander Giessen, Office of Prosecuting Attorney, for Appellant.
Appellee appeared pro se.
Trial Court No. CCT-66086]
Decided August 23, 2021.
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Jane
M. Smith
Dupris, CJ
This matter came before the Court of Appeals on a Notice of
Interlocutory Appeal filed on June 21, 2021 by Appellant Colville
Confederated Tribes against Appellee Jered Shay Picard. Appellant is
represented by Michael L. Vander Giessen, Tribal Prosecutor’s Office.
Appellee is pro se.
Appellant alleges the Trial Court committed error by entering an order
when no criminal case existed while Appellee was incarcerated, and failed to
follow the statutory requirements of CTC, Chapter 5-5, the Domestic Violence
Code, for release and bail applicable to defendants charged with cases
involving domestic violence.
Procedural Summary
The following facts are found in the record:
1. Defendant/Appellee Jered Picard (Appellee) was arrested on June 11,
2021 and booked into the tribal jail at 3:00 a.m.. The charges were (1)
Malicious Mischief (Domestic Violence) and (2) Burglary. CTC §§ 3-151, and 3-1-41, respectively, both with a domestic violence
enhancement, CTC § 5-5-54 .
2. The 72-hour time to arraign Appellee on the charges after he was arrested
ended June expired at 3:00 a.m. on June 16, 2021. CTC § 2-1-100.
3. Appellee submitted a furlough request to the Court on June 15, 2021 in the
morning, to attend a funeral of his great-aunt.
4. Appellant objected to the furlough request, stating it was going to file its
complaint in the morning, and that Appellee was contacting the
alleged victim, and posed a flight risk. Appellant stated it would like to
discuss the request at the arraignment.
5. Appellant filed the criminal charges against Appellee on June 15, 2021 at
9:08 a.m. and the Court assigned it a case number at 1:07 p.m. that
day.
6. Before the case was officially opened on June 15, 2021 the Judge granted
the furlough at 9:30 a.m., over the objection of Appellant, and without
a hearing on the request, nor an arraignment on the charges.
7. Appellee did show up on June 15th at 1:00 p.m. to be arraigned, and
Appellant was represented. The Judge did not show up.
8. A Court Clerk appeared at 1:22 p.m. with an order from the Court stating
Appellee was released on his own recognizance until an arraignment
set for June 18, 2021. There were some irregularities in the times
stated on the order which are not relevant here.
9. The arraignment was continued again to June 21, 2021 because the tribal
government recognized a new federal holiday on June 18th, also not
relevant here.
Issue
Whether the Trial Court erred in entering orders granting Appellee a furlough
when there was no case filed, and later a personal recognizance release
before the arraignment without a hearing, and in contravention of the
statutory requirements of criminal procedure, CTC §§ 2-137, 2-1-100, 2-1-101, and the requirements of the Domestic Violence Code,
CTC §§ 5-5-1 et seq.
Standard of Review
The issue is one of law, which we review de novo. Naff v. CCT, 5
CCAR 50 (1995).
Discussion
The facts alleged in this case are analogous to the actions of the
judge in CCT v. Russell Boyd, 10 CCAR 8 (2009). In Boyd the defendant’s
spokesperson asked the judge to release her client after he had been
arrested and in jail 24 hours. The Appellant had not filed a criminal complaint
at the time of the request, and argued it had 72 hours in which to do so before
the defendant needed to be brought before the Court. The judge granted
defendant’s motion to be released without an open case before the Court,
found there was no probable cause for the defendant’s arrest, then directed
the Appellant to file its complaint so that an arraignment could be held on the
following day. The defendant was released on his own recognizance.
In Boyd we set out in particular detail the statutory process by which a
criminal case comes to the Court, starting with the filing of a criminal
complaint or citation complaint, allowing for the 72 hours in which the
Appellant has to review the police reports and decide whether to file a
complaint, and commencing with an arraignment on the complaint. We felt it
necessary to explain the basics of how a criminal case is initiated because of
the obvious lack of knowledge of the process by the judge.
In this case, added requirements exist in that the charges against
Appellee have domestic violence enhancements. That is, each charge
specifically involves allegations of domestic violence. CTC § 2-3-37, Crimes
Involving Domestic Violence, requires the application of the enhanced
procedures found in CTC, Chapter 5-5 when domestic violence is alleged.
Under CTC, Chapter 5-5: (1) police officers responding to a call
involving domestic relations have to make an arrest, or explain in a detailed
report why an arrest was not made, and persons arrested "shall not be
released prior to arraignment", CTC § 5-5-12; (2) the Prosecutor is required to
state in the charging document that domestic violence is involved, CTC § 5-543; and (3) the Court is required to consider several specific factors in
deciding bail conditions, and enter a written order with specificity of such
conditions for release. The order of release must be given to the Police
Department by the Court with specific language regarding the consequences
to the defendant if the conditions are violated. CTC § 5-5-50.
The judge in this case did not comply with any of the conditions of
CTC § 5-5-50. The judge made a decision on Appellant’s request regarding a
furlough apparently without an open court case at the time he made the
decision, and without considering the requirements of CTC Chapter 5-5. After
Appellant filed charges against Appellant and an arraignment was set before
Appellant’s furlough was to commence, the judge did not appear for the
arraignment. Both parties were present. Instead he entered a bail order
releasing Appellee on his own recognizance pending another arraignment set
from the bench, and had the Court Clerk deliver it to the parties. Appellant
asked the Court Clerk for the hearing to go forward because it wanted to state
its objections on record. The parties were informed the judge was not going to
hear the matter at that time.
We granted the Interlocutory Appeal because of the irregularities in
the procedures in this case. Two questions are raised: (1) was it the Court’s
responsibility to decide whether Appellee should have been granted the
furlough before there was an open Court case?; and (2) did the actions of the
Court violate the due process rights of Appellant?
(1) Was it the Court’s responsibility to decide whether Appellee should
have been granted the furlough before there was an open Court
case?
We find the answer to this question is "no." The status of Appellant at
the time of the furlough request was that he was under the supervision of
Appellant’s Executive branch, its Administrative Department, the Tribal Jail,
and not the Judicial branch, the Court. It is the responsibility of the Court is to
provide the forum for the criminal complaint once it is filed. Once the Court
enters a judgment the supervision of a defendant, if ordered to jail or to be
released, is once again with the Executive branch and its departments.
Appellee is to ask the jail, as the appropriate supervising department, for the
furlough. The Police Department has its statutory responsibilities under CTC
Chapter 5-5 regarding Appellee, that are independent from the Court’s
responsibilities. The Court should not be involved in the case before it is
properly brought before it. By doing so the Judge gives the appearance of
interfering with the roles and responsibilities of the Police Department (See,
eg. CTC § 5-5.12), an arm of the Executive branch of the government.
(2) Did the actions of the Court violate the due process rights of
Appellant?
We find the answer to this question to be "yes." Appellant first
objected to Appellee’s release when the furlough was requested (see Colville
Tribal Corrections Facility & Colville Tribal Court Uniform Furlough Application
dated June 15, 2021, at page 3). Appellant continued its objection at the
arraignment at which the Judge failed to appear. The Court was on notice of
the objections, and knew, or should have known, of its responsibilities under
the Code when a domestic violence case is filed. There is nothing in the
record that shows the Court considered the objections of Appellant. All
requests to have its objections on record were ignored.
It is well-established law that every party is entitled to minimum due
process. See, e.g. CCT v. Marchand, 11 CCAR 69 (2014); CCT v. Dogskin,
10 CCAR 45 (2011); Jerred v. Leskinen, 12 CCAR 73 (2016). That is, the right
to adequate notice and the opportunity to be heard on record. The Court did
not provide even the minimum due process in this matter to Appellant. It
ignored the law in allowing Appellee’s furlough prior to an actual case before
it, and in contravention of the Domestic Violence Code. There is nothing on
the record from the Court to justify such a deviation from the law. We so hold.
It is ORDERED that:
We REVERSE and REMAND, and, per our precedence in Boyd,
supra, we direct the removal of Judge Aycock from the case. The general
rule is that we do not remove judges from Trial Court cases unless an
exception is warranted in extraordinary circumstances. This is one. Judge
Aycock, by his conduct, gives the appearance of unfairness and bias toward
Appellant.
Melissa WILLIAMS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, et. al, Appellants.
Case No. AP21-001, 8 CTCR 08
15 CCAR 26
[Mark Carroll, Spokesperson, appeared for Appellant.
Shannon Thomas, Spokesperson, appeared for Appellees.
Trial Court No. CV-OC-2018-41035]
Decided November 15, 2015.
Before Presiding Justice Michael Taylor, Justice David C. Bonga, and Justice
R. John Sloan Jr.
Taylor, J.
This Appeal was timely filed in the Court of Appeals subsequent to the
Trial Court Decision/Order in Williams v. CCT # CV-OC-2018-41035. In that
Trial Court Order Denying Motion And Dismissing Complaint the Court
carefully considered the remand Order entered by this Court in AP19-014. In
that Order Remanding the Court of Appeals propounded seven specific
questions to the Trial Court regarding the law and facts of this dispute. Those
questions, in part, asked the Trial Court to determine whether or not
Appellant's claims for damages asserted in this action can be characterized
as arising under the provisions of CCT 15-1 --1-5-8; the Colville Tribal Civil Rights Act (CTCRA). In addition, the Trial
Court found it necessary to carefully consider the provisions of an insurance
policy alleged by Appellant to cover the claims made by Appellant in this
matter.
It was necessary for the Trial Court, and now for this Court, to
consider the provisions of that insurance policy alleged here to cover certain
claims against Appellee. The policy, agreed by the parties to be in effect at
the time the events giving rise to this litigation, is a key factor in this dispute
because recovery of the limited damages claimed under the CTCRA is only
available if covered by insurance. CCT 1-5-8 The question of insurance
coverage has been here solely placed upon the Courts as the Appellee, upon
receiving the claim chose, as it is clearly entitled to do, not to tender the claim
to its insurer. Therefore, the Courts have no interpretation of the policy
provisions at issue provided by the insurer.
Therefore, we consider each of the findings of the Trial Court
regarding the question of whether the Appellant's claims arise under the
provisions of the CTCRA, the documents provided as relevant evidence by
Appellant, the defenses asserted by Appellee, and the provisions of the
insurance policy regarding coverage.
ISSUES
Whether the claims of refusal of the Appellee to pay to Appellant
compensation for unused vacation leave arise under the provisions of the
CTCRA?
Whether Colville Business Council (CBC) Resolution 1997-391 may
be considered by the Court in resolving this dispute?
Whether the insurance policy at issue here provided coverage to
Appellee for the claims asserted by Appellant here?
Whether the provisions of CCT 1-5-8 provide a general or a limited
waiver of Appellee's tribal sovereign immunity in the circumstances of this
dispute?
STANDARD OF REVIEW
The issues are those of law, which we review de novo. Naff v. CCT, 5
CCAR 50 (1995).
DISCUSSION
Appellant was a duly elected member of the legislative body of the
Confederated Tribes of the Colville Reservation (CBC). Within a few months
of her election, by processes of the CBC, she was removed from her elected
position. Subsequent to her removal she applied to the Tribes for a cash
payment totaling the monetary value of the paid vacation leave to which she
had become entitled but had not used during her term. The Tribes denied
any payment. This litigation in the Tribal Courts under the provisions of the
CTCRA ensued. This appeal is the third consideration this Court has given to
Appellant's claims in this specific dispute. The Court will consider the relevant
rulings of the Trial Court below in sequence.
We find that the Trial Court was correct and supported in finding that
CBC Resolution 1997-391 providing for cash payouts for unused CBC
vacation leave applicable to the circumstances set out by Appellant in her
complaint and that consideration did not violate the "Rule of Mandate." The
Trial Court was also correct and supported in finding that the relevant
provisions of CBC Resolution 1997-391 should be read independently.
We find that the Trial court was correct and supported in finding that
the claims of Appellant here fall within the due process and equal protection
provisions of the CTCRA.
We find that under CTC 1-5-8 when an active and enforceable policy
of insurance protecting Appellee from losses or judgments for violations of the
CTCRA exists, this section of the CTC provides for a waiver of tribal
sovereign immunity - limited to actual damages shown at trial and not
including court costs, fees, attorney fees and other similar costs and fees.
The question of whether an active and enforceable insurance policy
was in effect at the time the claims herein arose is a key one to resolving this
appeal. The question is key for a number of reasons but most importantly
because, under the provisions of CTC 1-5-8, in the form current at the time
these claims arose, the existence of such a policy provides for a waiver of the
sovereign immunity of the Tribes; allowing for the imposition of any damages
proved at trial.
It is clear from the record that the Tribes was protected by a policy of
insurance active at the time the claims herein arose. The question then is
whether that active policy was enforceable. The Trial Court carefully reviewed
the provisions of that policy in detail and concluded that, because of the
definitions and exclusions contained in the policy, the policy was not
enforceable and no coverage was provided to the Tribes for the claims
asserted in this matter. As a result the Trial Court found that Tribal immunity
was not waived under CTC 1-5-8 and the Trial Court was required to dismiss
Appellant's complaint.
It is now our obligation to review the active policy and determine
whether any of its provisions provided coverage to the Tribes for the claims
asserted by Appellant. We find that the insurance policy which was in effect
and enforceable at the time the claims herein arose did in fact provide
coverage to the Appellee as follows:
We read the policy of insurance as we would read and interpret any
form of contract using the plain meaning of the language of the policy and
without favoring any party to the policy or any potential beneficiary of its
provisions.
The Trial Court considered the question of whether Appellant was an
"insured" at the time her claims arose. The policy excludes claims between
parties that may be considered "insured". The claims of Appellant arose after
she had been terminated from her position as a member of the CBC.. Thus,
she was not an "insured" under the policy and her claims were not excluded.
The policy at Section J (pages 15-16 of policy) provides for coverage
of employee benefit plans and at "1 d." vacation plans are covered. The Trial
Court found that the use of the word "Administration" in that provision did not
include Appellant's claim for unused vacation leave. We find, however, at "2
d" Administration is further defined as effecting enrollment, termination or
cancellation of employees included in "employment benefit programs". Thus,
Appellant's claims are covered unless excluded by the "Common Policy
Exclusions N" (page 34 of policy). We do not find that any of the provisions of
"N" clearly exclude a debt owed Appellant and accrued under a tribal law
(CBC Resolution 1997-391) owed to a member of the Tribes.
As a result we find that Appellant does benefit from the limited waiver
of tribal sovereign immunity under CTC 1-5-8 to the level of actual damages
as show at trial and the monetary limits included in the insurance policy.
ORDER
It is ORDERED that:
We reverse and remand to the Trial Court for determination and
assessment of damages and further proceedings consistent with the findings
in this Opinion.
Melissa WILLIAMS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, et. al, Appellants.
Case No. AP21-001, 8 CTCR 08
15 CCAR 26
[Mark Carroll, Spokesperson, appeared for Appellant.
Shannon Thomas, Spokesperson, appeared for Appellees.
Trial Court No. CV-OC-2018-41035]
Decided November 15, 2015.
Before Presiding Justice Michael Taylor, Justice David C. Bonga, and Justice
R. John Sloan Jr.
Taylor, J.
This Appeal was timely filed in the Court of Appeals subsequent to the
Trial Court Decision/Order in Williams v. CCT # CV-OC-2018-41035. In that
Trial Court Order Denying Motion And Dismissing Complaint the Court
carefully considered the remand Order entered by this Court in AP19-014. In
that Order Remanding the Court of Appeals propounded seven specific
questions to the Trial Court regarding the law and facts of this dispute. Those
questions, in part, asked the Trial Court to determine whether or not
Appellant's claims for damages asserted in this action can be characterized
as arising under the provisions of CCT 1-5-1 --1-5-8; the Colville Tribal Civil
Rights Act (CTCRA). In addition, the Trial Court found it necessary to
carefully consider the provisions of an insurance policy alleged by Appellant
to cover the claims made by Appellant in this matter.
It was necessary for the Trial Court, and now for this Court, to
consider the provisions of that insurance policy alleged here to cover certain
claims against Appellee. The policy, agreed by the parties to be in effect at
the time the events giving rise to this litigation, is a key factor in this dispute
because recovery of the limited damages claimed under the CTCRA is only
available if covered by insurance. CCT 1-5-8 The question of insurance
coverage has been here solely placed upon the Courts as the Appellee, upon
receiving the claim chose, as it is clearly entitled to do, not to tender the claim
to its insurer. Therefore, the Courts have no interpretation of the policy
provisions at issue provided by the insurer.
Therefore, we consider each of the findings of the Trial Court
regarding the question of whether the Appellant's claims arise under the
provisions of the CTCRA, the documents provided as relevant evidence by
Appellant, the defenses asserted by Appellee, and the provisions of the
insurance policy regarding coverage.
ISSUES
Whether the claims of refusal of the Appellee to pay to Appellant
compensation for unused vacation leave arise under the provisions of the
CTCRA?
Whether Colville Business Council (CBC) Resolution 1997-391 may
be considered by the Court in resolving this dispute?
Whether the insurance policy at issue here provided coverage to
Appellee for the claims asserted by Appellant here?
Whether the provisions of CCT 1-5-8 provide a general or a limited
waiver of Appellee's tribal sovereign immunity in the circumstances of this
dispute?
STANDARD OF REVIEW
The issues are those of law, which we review de novo. Naff v. CCT, 5
CCAR 50 (1995).
DISCUSSION
Appellant was a duly elected member of the legislative body of the
Confederated Tribes of the Colville Reservation (CBC). Within a few months
of her election, by processes of the CBC, she was removed from her elected
position. Subsequent to her removal she applied to the Tribes for a cash
payment totaling the monetary value of the paid vacation leave to which she
had become entitled but had not used during her term. The Tribes denied
any payment. This litigation in the Tribal Courts under the provisions of the
CTCRA ensued. This appeal is the third consideration this Court has given to
Appellant's claims in this specific dispute. The Court will consider the relevant
rulings of the Trial Court below in sequence.
We find that the Trial Court was correct and supported in finding that
CBC Resolution 1997-391 providing for cash payouts for unused CBC
vacation leave applicable to the circumstances set out by Appellant in her
complaint and that consideration did not violate the "Rule of Mandate." The
Trial Court was also correct and supported in finding that the relevant
provisions of CBC Resolution 1997-391 should be read independently.
We find that the Trial court was correct and supported in finding that
the claims of Appellant here fall within the due process and equal protection
provisions of the CTCRA.
We find that under CTC 1-5-8 when an active and enforceable policy
of insurance protecting Appellee from losses or judgments for violations of the
CTCRA exists, this section of the CTC provides for a waiver of tribal
sovereign immunity - limited to actual damages shown at trial and not
including court costs, fees, attorney fees and other similar costs and fees.
The question of whether an active and enforceable insurance policy
was in effect at the time the claims herein arose is a key one to resolving this
appeal. The question is key for a number of reasons but most importantly
because, under the provisions of CTC 1-5-8, in the form current at the time
these claims arose, the existence of such a policy provides for a waiver of the
sovereign immunity of the Tribes; allowing for the imposition of any damages
proved at trial.
It is clear from the record that the Tribes was protected by a policy of
insurance active at the time the claims herein arose. The question then is
whether that active policy was enforceable. The Trial Court carefully reviewed
the provisions of that policy in detail and concluded that, because of the
definitions and exclusions contained in the policy, the policy was not
enforceable and no coverage was provided to the Tribes for the claims
asserted in this matter. As a result the Trial Court found that Tribal immunity
was not waived under CTC 1-5-8 and the Trial Court was required to dismiss
Appellant's complaint.
It is now our obligation to review the active policy and determine
whether any of its provisions provided coverage to the Tribes for the claims
asserted by Appellant. We find that the insurance policy which was in effect
and enforceable at the time the claims herein arose did in fact provide
coverage to the Appellee as follows:
We read the policy of insurance as we would read and interpret any
form of contract using the plain meaning of the language of the policy and
without favoring any party to the policy or any potential beneficiary of its
provisions.
The Trial Court considered the question of whether Appellant was an
"insured" at the time her claims arose. The policy excludes claims between
parties that may be considered "insured". The claims of Appellant arose after
she had been terminated from her position as a member of the CBC.. Thus,
she was not an "insured" under the policy and her claims were not excluded.
The policy at Section J (pages 15-16 of policy) provides for coverage
of employee benefit plans and at "1 d." vacation plans are covered. The Trial
Court found that the use of the word "Administration" in that provision did not
include Appellant's claim for unused vacation leave. We find, however, at "2
d" Administration is further defined as effecting enrollment, termination or
cancellation of employees included in "employment benefit programs". Thus,
Appellant's claims are covered unless excluded by the "Common Policy
Exclusions N" (page 34 of policy). We do not find that any of the provisions of
"N" clearly exclude a debt owed Appellant and accrued under a tribal law
(CBC Resolution 1997-391) owed to a member of the Tribes.
As a result we find that Appellant does benefit from the limited waiver
of tribal sovereign immunity under CTC 1-5-8 to the level of actual damages
as show at trial and the monetary limits included in the insurance policy.
ORDER
It is ORDERED that:
We reverse and remand to the Trial Court for determination and
assessment of damages and further proceedings consistent with the findings
in this Opinion.
Desiree FREUND, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP21-010, 8 CTCR 09
15 CCAR 32
[Payton Garcia, Spokesperson for Appellant
Taima Carden, Spokesperson for Appellee
Trial Court Case Number CR-2019-42115]
Decision March 3, 2022.
Before Chief Justice Anita Dupris, Justice R. John Sloan Jr., and Justice Jane
M. Smith
Smith, J
Appellant appeared before the Court through spokesman Peyton
Garcia. Appellee appeared through spokesman Michael Vander Giesen.
Smith, J.
SUMMARY
Appellant and a female friend (Greydall) of her’s from out of state,
were in Appellant’s home drinking alcohol. Appellant’s two daughters,
Greydall’s children, and a friend of Appellant’s oldest daughter were also
present. The two older girls were in a bedroom listening to music and the
other children were in the living room playing. An altercation ensued between
the children in the living room. Greydall was yelling at them, so Appellant’s
oldest daughter (A.S.) went to investigate. A.S. tried to intervene between
Greydall and her children. Greydall grabbed A.S.'s arm and A.S. told Greydall
not to touch her. Greydall then went to the kitchen and told Appellant that A.S.
had disrespected her. Appellant called A.S. into the kitchen and told her to
apologize to Greydall. A.S. refused. Appellant threatened A.S. that her
stepfather would beat her. A.S. testified that her mother threw the first punch,
then a fight ensued between them in the kitchen. A patch of hair was pulled
from A.S.’s head, she was hit with a closed fist to her face, and had several
scratches. A.S.’s friend (A.N.), who was in the bedroom, recorded some of
the argument and fight on her phone. The two girls then left the house to go
to the A.N.’s grandmother’s place next door. Someone called the Colville
Tribal Police (CTP), and when they arrived they spoke with A.S.. She
downplayed the incident, not wanting to get her mother in trouble. The CTP
did an investigation. Pictures taken later by the CTO showed scratches,
bruising, and other indications of a fight on A.S. Appellant was subsequently
charged with Battery with a Domestic Violence enhancement. At trial, the jury
found Appellant guilty of the charge and enhancement. Appellant timely
appealed the decision, alleging that there was insufficient evidence presented
to the jury to find guilty and that the alternate juror was allowed into the jury
deliberations.
STANDARD OF REVIEW
The issues are of mixed law and fact. Our standard of review is de
novo. CCT v. Naff, 2 CCAR 50 (1995).
ISSUES
There are two issues before us: 1) Was there sufficient evidence
submitted to the jury to affirm a guilty verdict? If yes, then 2) Was it error to
allow an alternate juror to be allowed in deliberations, even with the
instruction that the juror was not allowed to contribute to the deliberations?
ISSUE 1
Was there sufficient evidence submitted to the jury to affirm a
guilty verdict?
A.S. testified that her mother struck her first. A.S. also testified that her
mother threatened her with a beating by her stepfather. A.S. had a patch of
hair pulled out, and the hairless spot was still visible months after the incident.
There were pictures of the scratches and bruises on A.S. taken by the CTP.
The pictures were shown to the jurors.
A.N. testified that she was in the bedroom when the fight started, but
she managed to record a lot of the altercation on her phone. There was
yelling and other fight-related sounds recorded. The jury was able to listen to
the phone evidence.
The jury heard the testimony, saw the evidence presented, and
determined that the defendant was guilty as charged.
A jury trial and a bench trial have one thing in common - both have
"triers of fact." In a jury trial, the trier of fact is the jury. In a bench trial, the trier
of fact is the judge. Both of their duties are to look to the law and facts and
make an informed decision. In Campobasso v. Cawston, 14 CCAR 59 (2019),
we stated, "Under a de novo review we evaluate the credibility of the
testimony and evidence submitted to the record, as well as the weight the
credibility was given by the Trial Court. The test is whether there was a
reasonable basis for the judge to make her ruling, based on the facts and the
law before her, and not whether we might have ruled differently under the
same circumstances." In Desautel v. CCT, et al., 13 CCAR 31 (2017) we
stated, "The credibility of any witness or evidence is the sole province of the
fact-finder."
The Court finds that there were sufficient facts presented to the jury to
allow them to make an informed decision.
Appellant’s younger daughter (A.K.), who was only 7 at the time and
now 10 years old, was called to testify. She was allowed a support person to
sit with her. She was allowed to not have to sit on the witness stand. The
spokesmen were ordered to be gentle or they would be out real quick. They
were also ordered to keep the questioning brief. The judge refused to put A.K.
under oath as he felt she was too young. A.K. briefly testified for the defense
that her older sister started the fight. The Prosecutor countered that A.K. was
supportive of her mother and would not want to go against her. The
Prosecution did not get to further rebut A.K.’s testimony because the judge
stopped the questioning before any questions could be asked. He felt she
looked scared. The judge stated that he would not allow a child of 10 to
testify, that it was a travesty, and he was not going to subject her to that
When the Prosecutor stated that the State of Washington determined that 8
year olds were presumptive competent witnesses, the judge stated that he
had made his ruling and wasn’t going to change it. When asked to reconsider
his prior ruling that testimony be allowed by prior testimony, the judge refused
and said that he was not going to reconsider. Prosecutor could appeal if he
wanted.
In Desautel v. CCT, et al., 13 CCAR 31 (2017) we stated, "We have
addressed the competency and hearsay evidence issue once before in our
Court. Bush v. CCT, AP90-[006], in which the CoA affirmed the Trial Court’s
adoption, as guideline, Washington State RCW 9A.44.120, which set out the
parameters of when a child is competent and when the child’s outof-court statements could be used as evidence as an exception to the
hearsay rule."
ISSUE 2
Was it error to allow an alternate juror to be allowed in
deliberations, even with the instruction that the juror was not allowed to
contribute to the deliberations?
Jury7 selection proceeded without any major issues. Prior to opening
arguments Defense realized he didn’t think he had been allowed to offer any
for-cause challenges8. He brought this to the attention of the Judge, but the
Judge brushed it off, telling him he was too late in bringing it to the attention
of the Court, and that the Judge was certain he gave both parties the
opportunity to contribute. When asked if he would review the record, the
Judge made it clear that he wasn’t going to review the record as he was sure
he asked both parties for for-cause challenges. He refused to take any more
time to discuss the matter. He had made his decision and he was not going to
take extra time to determine if he was right or not. It could be appealed if
Defense felt he had been wronged.
Upon review by this Court of the oral record, the Judge was in error.
He went right into pre-emptories immediately after asking the Prosecutor if he
had any for-cause challenges. He did not ask Defense if he had any forcause challenges. It appears that taking a few extra minutes to confirm
whether he erred or not was less of a priority to the Judge than getting the
trial to the jury quickly.
At the end of voir dire, the Judge enquired from the clerk and
Spokesmen what the usual procedure was for selection of the alternate jurors
and when told the procedure9, he said that he was not going to do it that way,
he was going to do it his way, as it was easier for him. The Judge designated
the last juror seated as the alternate. The alternate juror would go into
deliberations, but would not be allowed to participate. The judge did send the
alternate into the deliberations with the other jurors, with the command that
the alternate was not to participate in any fashion during deliberations. When
the jury finished deliberations, the alternate was dismissed. There was no
inquiry if the command to not participate was actually followed nor was there
any comments made to the Court suggesting the command had not been
followed.
Prior to the trial actually starting and after voir dire, Appellant brought
to the attention of the Court that there was a problem with the alternate juror,
but the Judge indicated that he had made his decision and would not hear
anything further on the subject. The juror was selected and that was that. The
trial then moved forward.
It is a concern of this Court that the judge’s seeming need to hurry
through trials and not wanting to take time to make sure all the parties’ rights
are being protected may cause
harm in the future. We are a tribal court
and though we need to make timely decisions, we also are very protective of
making sure everyone has an opportunity to have their say in court. We would
caution the judge to be concerned less with the time and be more concerned
with making sure rights are not being violated.
Appellant argues that we must look to state common law before any
other law when tribal statute and common law are lacking10. Appellant cites
to State v. Cusick, 11 Wn. App. 539 (WA Ct. App. 1974). "The presence of an
alternate juror during jury deliberation, contrary to RCW 10.49.07011 and CrR
6.512, invades a criminal defendant’s right by an impartial jury and is
presumed to be prejudicial."
The WA Supreme Court affirmed the conclusion of the Ct of Appeals
saying, "A verdict rendered by a jury membership in any strength other than
that specifically authorized by law is void." State v. Cusick, 530 P.2d 288
(1975). The prosecutor in that case also asked that the case be remanded to
see if any actual prejudice could be determined. The Court declined, saying
"A factual hearing would not be likely to shed much light on the actual effect
of the alternate juror’s presence in the jury room. It would certainly be
impossible to recreate at this point every move, every expression he might
have made during the several hours of deliberations." Other states have
adopted the Cusick standard: Maryland, North Carolina, New Mexico,
Massachusetts, and Oklahoma.
Another issue that was discussed by the Cusick court was there was
no objection by the defense to the alternate juror. Cusick determined that the
error was such an intrusion into the defendant’s right to a fair and impartial
jury that the fact that there was no initial objection was insufficient to reverse
its findings.
Appellee counters that the Trial Court did not err by allowing an
alternate juror in the deliberations. He states that Colville Tribal law does not
prohibit the Court from directing the alternate juror from being present at
deliberations. The Code is silent on that subject. He goes on to state that
State Court rule and state laws do not apply to our courts. He is correct,
however, we have looked them in the past for guidance in deciding issues
that we have no prior tribal law to rely on.
Appellee states that Cusick held that prejudice would be found unless
"it affirmatively appears that there was not and could not have been any
prejudice." He goes on to cite to United States v. Olano, 507 U.S. 725
(1993). There the court directed two alternate jurors to go to the deliberation
room with the 12-person jury, with instructions not to participate in
deliberations. The Court advised the attorneys that he was contemplating
letting the alternate jurors into deliberations with instructions that they not
participate, only observe. He gave them one day to consider. The next day,
the Court had an exchange with one of the attorneys. The attorney indicated
that they did not want the alternates in deliberations. The following day, the
last day of the trial, the Court again asked again if the alternates could be in
deliberations. One of the attorneys indicated that he thought the alternates
would be allowed. The Court concluded that this attorney spoke for all the
parties. None of the other counsel intervened, nor did they object later in the
day when the jury was instructed to deliberate. The Supreme Court declined
to presume prejudice and held that the unobjected-to presence of the
alternates did not warrant reversal. If the jurors did not actively participate,
either verbally or through body language, then it was no more intrusive than a
book on the table. They were not persuaded because the defendants made
no specific showing of prejudice by the presence of the alternate jurors. We
can distinguish the instant case from Olano. The Olano case was a huge trial,
involving many defendants and spanning many weeks. The deliberations
were anticipated to take several days/weeks. The judge in that case was
concerned that any of the jurors might not make it to the end of deliberations.
That is why he sat the two alternates as he did. In the instant case, it
concerns only one defendant, deliberations may take one or two days. Less
reason to worry that the jurors would make it to the end of the trial and
through deliberations.
Appellee further argues that we are not limited to only looking at
Washington state case law. The Code only says "state" not "Washington
state." Appellee then cites to a case from Maryland in which the defendant did
not object to the presence of an alternate juror. The court held that it was a
tactical decision and was not ineffective assistance of counsel. If there was no
objection to the alternate juror then the issue was waived by the defendant
and could not be used in an appeal. State v. Newton, 146 A.3d 1204. This
case can be distinguished from the instant case. The judge in the Newton
case had already had to declare a mistrial due to illness, conflicts, and being
unable to sit a 12-member jury. The judge, who declared that he normally
doesn’t do this, asked the parties if they would agree to having an alternate
juror sit in the deliberations, with instructions that they were not to participate.
He was concerned that there might be a mistrial if problems continued to
surface. Both parties agreed. The jury subsequently found the defendant
guilty and he was sentenced to life in prison. He appealed, stating that his
counsel was ineffective for agreeing to the alternate juror being present in
deliberations. There were other issues, but they don’t pertain to this issue.
The Appellate Court found that if the parties agreed with the change in
procedure, then there was no ineffective assistance of counsel and that it
could not be appealed.
In the instant case, there had not been any mistrial, there had been no
issues of juror illness or conflicts. This was a standard tribal jury trial, which
was anticipated to take one to two days to complete. Deliberations were not
expected to take days to come to a conclusion. Therefore, there wasn’t a
valid reason to allow the alternate juror into deliberations. Even the judge in
the Sexton case said that it was out of common for his to even suggest the
alternative procedure.
The Court of Appeals finds the Trial Court erred in allowing an
alternate juror into deliberations.
CONCLUSION
The Court of Appeals finds sufficient facts presented to the jurors to
support their decision. The Court of Appeals finds sufficient cause to remand
for a new trial in that the Trial Court erred by allowing an alternate juror to be
present in deliberations.
This matter is remanded to the Trial Court for action consistent with
this Opinion and Order.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Jordan SARGENT, Appellee.
Case No. AP21-018, 8 CTCR 10
15 CCAR 39
[Taima Carden, Spokesperson, appeared for Appellant.
Appellee was not represented and did not appear.
Trial Court Case Number CR-2011-34310]
Decision March 21, 2022.
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Jane
M. Smith
Dupris, CJ
This case came before the Court of Appeals (COA) for an Initial
Hearing on this date. Appellant appeals the Trial Court’s "Order On Motion to
Vacate Record of Felony Conviction and Restoration of Gun Rights" issued
November 11, 2021. Appellee was given notice of this hearing, but did not
appear.
The purpose of an Initial Hearing is to determine
1) whether the facts and/or laws as presented
warrant a limited appeal on issues of law and/or
of fact;
2) whether a new trial should be granted;
3) whether Appellant has provided sufficient
facts and/or law to reverse and remand; or
4) whether the appeal should be dismissed or denied.
The COA, having reviewed the record, reviewed the law, and hearing
from Appellant, has found cause to reverse and remand the Trial Court’s
Order.
FACTS
1. Appellee, Jordan Sargent, was charged with two criminal crimes in
the Trial Court in 2012. He plead guilty, was sentenced, and served his
sentence. The Trial Court closed his case.
2. On October 25, 2021, Appellee filed a Motion to Vacate Record of
Felony Conviction and Restoration of Gun Rights with the Trial Court,
claiming he had been rehabilitated and was seeking expungement of this
record and his state cases. He also requested that his rights be restored as
he had been a law abiding citizen since 2012.
3. On November 01, 2021, the Trial Court entered an order which
granted Appellee’s request. The Order further allowed the Appellee to
withdraw his guilty plea and enter a not guilty plea. It also dismissed the
information or indictment for the offenses, released the Appellee from all
penalties and disabilities, and ordered that the conviction for those offenses
not be included in any subsequent criminal history report used for purposes of
determining a sentence. The Order restored Appellee’s right to possess a
firearm.
4. The Appellant opposed the expungement and restoration.
5. There is no tribal law cited in either the Motion or Order which
would allow the Trial Court to grant Appellee’s request.
6. The Colville Tribes did not take away Appellee’s right to possess a
firearm nor did it restrict his rights concerning firearms.
7. There is no felony designation in Colville Tribal Law, only different
classes.
DISCUSSION
The COA has reviewed the record, the file, and heard from Appellant.
Appellee plead guilty and was sentenced to a fine, court costs, and jail,
including conditions for suspensions of some of the fine and jail. None of the
conditions were restriction of firearms.
No where in the Colville Tribal Law and Order is there a law that
allows the Court to restrict possession of a firearm, nor is there any caselaw
which allows such restrictions. The Motion and subsequent Order were both
void of any citation to any firearm restrictions that could be imposed, let alone
allow the restoration of such restriction. The charges he was facing did not
have a firearm enhancement, nor was there any mention of use of a firearm
during the altercation on which the charges were filed.
Tribal law is also void of any statute that would allow expungement of
any criminal record. Again the Motion and subsequent Order did not cite to
any authorizing law. The Order issued by the Trial Court is overbroad.
It appears that the Appellee and Trial Court relied on RCW 9.94A.640,
Washington State’s New Hope Act, which was enacted to do exactly what
Appellee was asking the Trial Court to do, i.e. expunge his record and
reinstate his right to possess firearms. RCW 9.94A.640 does not apply in our
Courts in that it a State statute which has not been adopted by our Tribes. It
was error for the Trial Court to rely on it.
CONCLUSION
The written record is void of any law to which the Court could rely on
to make its decision. The Order is void of any law which would allow the
Court to order expungement of Appellee’s record. There is no statutory or
case law which would authorize the Court to enter the Order for restoration
and expungement. RCW 9.94A.640 does not apply in our Courts. The Trial
Court did not take away Appellee’s right to possess firearms, therefore it
cannot reinstate something it did not take away.
Based on the foregoing, the Order On Motion To Vacate Record of
Felony Conviction and Restoration of Gun Rights dated November 1, 2021 is
REVERSED and the case is REMANDED to the Trial Court for dismissal of
the Motion and Order.
It is so ORDERED.
Daisy GARVAIS, Appellant,
vs.
Bradley MICHEL, Appellee.
Case No. AP19-020, 8 CTCR 11
15 CCAR 42
[Mark Carroll, Spokesperson for Appellant.
Jonnie Bray, Spokesperson for Appellee.
Trial Court Case No. CV-CU-2016-39011]
Decided December 17, 2021.
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Mark
W. Pouley
Dupris, CJ, for the Panel
SUMMARY PROCEEDINGS
This matter came before the Court on an Appeal of the Trial Court’s
Order dated November 21, 2019, in which the Court set aside an order
restraining Appellee from contacting the minor T.M., as part of a custody
action between the parties.
The Final Decree of Custody between the parties was entered March
17, 2017. Appellee was unrestrained from any contact with his minor son,
T.M., in this decree. In March of 2018 T.M. was taken into protective custody
by the State of Washington for incidences occurring in Appellant’s household,
and was thereafter declared a dependent and was taken into legal custody by
the State of Washington.
Appellee was notified by Washington Department of Children and
Family Services (DCFS) that he would be able to participate in the
dependency case, and be offered remedial services and supervised visitation
but for the restraining order entered by the Colville Tribal Court. He moved
the Court to lift the restraining order so that he could participate in the
dependency case in State Court; the motion was granted. Appellant filed a
timely appeal of the Order granting the Motion. Based on the reasoning set
forth below, we affirm the Trial Court’s decision and dismiss the Appeal.
ISSUE
Did the Trial Court apply the appropriate standard of "best interests"
and "substantial change of circumstances" in modifying the final custody
order?
STANDARD OF REVIEW
The issue is of both fact and law. When it is mixed, as a general rule
we de novo. CCT v. Naff, 2 CCAR 50, (1995). In reviewing a Trial Court’s
ruling under this standard, we do not base our decision on whether we would
have ruled differently in the same circumstance, but whether in his ruling, the
Judge abused his discretion, and the ruling was unreasonable or arbitrary.
That is, there is a presumption the Judge’s ruling was correct, and it must be
shown otherwise by a review of the facts upon which he made his ruling.
DISCUSSION
Our custody laws support finality of custody orders, which a higher
burden to overturn or modify them, in the best interests of the minor involved.
This is set out in CTC § 5-1-126, Child Custody Decree – Modification.
Section (b) states that a custody decree "shall not" be modified uless facts
have arisen since its entry that "amount to a substantial change ... justifying
modification ... to serve the best interests of the child."
At the hearing on the request to modify the custody order herein, the
Court received evidence that (1) the minor, T.M., was no longer in the custody
of Appellant, and was a ward of the Washington Courts, and (2) that DCFS
wanted to work with Appellee, as T.M.’s parent, with a goal of reunification.
The restraining order prevented this goal.
We are aware that civil custody causes of action and dependency
actions may have competing goals when in the civil action the Court must
decide the best interests of which parent should have custody, whereas the
Court in a dependency action has a goal of reuniting children with their
parents or parent, and so that the State doesn’t have to be the custodian.
Here the two Courts have the same child before them, and both look
at what is in the best interests of the child. The Tribal Court assessed the
facts that T.M. was removed from his primary custodian, in whose custody he
was phyusically harmed, and that DCFS could, and would, offer Appellee the
support and services to help him be a better parent so that the minor could be
reunited with family.
The Trial Court did an assessment of the best interests of the minor.
Appellant appeals the semantics in that the Judge didn’t use exact words
from the statute in so doing. The facts do support a substantial change in
circumstances. T.M. was removed from Appellant’s custody. The Trial Court
found that the restraining order was an impediment to the overall goal of
reunification under the dependency case, and found that DCFS would provide
adequate supervision of Appellee.
Even though the Trial Court did not use the exact wording from the
modification statute, as Appellant urges, there are sufficient facts in the record
to support the Trial Court’s findings and rulings. We find no abuse of
discretion.
ORDER
Based on the reasoning set out above, we AFFIRM the Trial Court’s
decision and DISMISS the Appeal.
It is so ORDERED.
Andrea GEORGE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, et. al, Appellees.
Case No. AP21-016, 8 CTCR 12
15 CCAR 44
[Mark Carroll, Spokesman for Appellant.
Christopher Kerley, Spokesman for Appellees.
Peter Erbland, Appellee, Pro se.
Trial Court Case No. CO-OC-2019-42026]
Decided April 12, 2022.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice
Michael Taylor
ORDER
In late January, 2019 Appellant Andrea George filed a civil complaint
against The Confederated Tribes of the Colville Reservation (CCT), thirteen
(13) Council members, past and current, three (3) attorney employees, past
and current, of the Office of Reservation Attorneys (ORA), and Peter Erbland,
a contract attorney who had done work for the Council. In total, the number of
Respondents was eighteen (18). The complaint is not file-stamped by the
Trial Court, but it was signed by Appellant on January 25, 2019.
After a very lengthy statement of allegations against each of the
Respondents, both singularly and severally, Appellant identified four (4)
specific counts of actions of the respondents upon which she based her
lawsuit: (1) Sexual Harassment; (2) Intentional Affliction of Emotional
Distress; (3) Retaliation; and (4) Defamation.
The Trial Court, after considering the record and pleadings of the
parties, granted Respondents’ Motion for Summary Judgment. The Motion
was filed by all of the Respondents except Mr. Erbland. Mr. Erbland joined in
the Motion. The Trial Court found Gabriel v. Colville Business Council, 14
CCAR 05 (2018) dispositive in that Gabriel held actions regarding CBC
members’ ethics and ability to remain a CBC member "lies exclusively within
the constitutional and statutory powers and authority of the CBC itself." id..
That is, separation of powers prevents our review of the actions of the CBC in
their capacity as CBC members.
The Trial Court addressed each individual Count, too, discussing the
doctrine of sovereign immunity. We need not review the case further then
finding we have no subject matter jurisdiction over the case. Sovereign
immunity is an affirmative defense, which is raised when the Court has
subject matter jurisdiction. See Swan v. CBC, 11 CCAR 83 (2014).
As for the actions against Peter Erbland, they are not actionable in
this case. Mr. Erbland merely gave legal advice to the CBC; he did not cause
any of the allegations against the other Respondents/Appellees.
Based on the foregoing, now therefore
It is ORDERED that the Trial Court’s Order of October 18, 2021 is
AFFIRMED and this Appeal is DISMISSED WITH PREJUDICE, and
REMANDED to the Trial Court for actions consistent with this Order.
Max LAZARD, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP21-007, 8 CTCR 13,
15 CCAR 45
[Michael Humiston for Appellant,
Taima Carden, for Appellee.
Trial Court Case No. CR-2018-41040]
Decided April 18, 2022
Before Chief Justice Anita Dupris, Justice Mary Finkbonner, and Justice
Theresa M. Pouley
Dupris, CJ
Procedural Summary
This appeal arises from the latest ruling in this case, which was initially
filed on March 21, 2018, in which Appellant was charged with two counts of
drug possession (methamphetamine and heroin), and two counts of
possession of drug paraphernalia. Appellant, while represented by a
spokesperson, entered guilty pleas to the two drug possession charges on
May 3, 2018 and was sentenced on that date. The two possession of drug
paraphernalia charges were dismissed.
Our Court dismissed an Appeal of the Trial Court’s Order of January
15, 2021which reinstated Appellant’s suspended sentence 510 days, finding
the reinstated jail time did not violate the Tribal Law and Order Act (TLOA), 25
U.S.C. 2801 (2010). The Appellant also asked this Court to review his guilty
plea and Judgment and Sentence of May 3, 2018. We held this request was
untimely and denied the Appeal.
In April, 2021 Appellant asked the Trial Court to vacate his conviction
based on a newlyissued State of Washington case, State v. Blake, 197 Wn.2d 170, 481 P.3d
521, 2021 LEXUS 107 (2021), in which the Washington State Supreme Court
(Supreme Court) found the State’s drug possession statute unconstitutional
because it lacked a mens rea element. Appellant asked the Court to review
our drug possession statutes under the standards established in Blake,
supra. Appellee Tribes objected to the Motion to Vacate. On June 25, 2021
the Trial Court denied the Motion to Vacate. Appellant filed a timely appeal
from this latest Order.
After reviewing the record and applicable law, and based on the
reasoning below, we find that Appellant’s case is distinguishable from Blake,
supra. We will not adopt the rulings in Blake and will affirm the Trial Court’s
Order dated June 25, 2021.
Issue
Does our strict liability criminal statute against drug possession violate
a defendant’s due process rights without a mens rea element, analogous to
the reasoning set out in State v. Blake, supra?
Standard of Review
The issue is one of law. We review de novo. Naff v. CCT, 2 CCAR 50
(1995).
Discussion
Appellant asks us to adopt the reasoning and ruling in Blake, supra in
which the Washington State Supreme Court found its strict liability felony drug
possession statute was unconstitutional as it was beyond the power of the
Washington State Legislature to criminalize unknowing possession of drugs.
Such conduct, the Supreme Court held, violated defendants’ due process
rights under the State and Federal Constitutions.
Briefly, the facts under Blake, supra, were that a defendant was
arrested during a search warrant, and when booked into jail, illegal drugs
were found in the coin pocket of the jeans she was wearing. At trial she
claimed she was innocent because she got the pants second hand from a
friend, and she didn’t know there were drugs in the coin pocket. The jury
found her guilty of possession of drug possession, finding she had not proven
her defense of "unwitting possession."
The Washington Court of Appeals affirmed her conviction. On appeal
to the Supreme Court the Blake defendant challenged the strict liability drug
possession, arguing it should have a mens rea element. The Supreme Court
agreed. It posited that because of the extreme consequences of the crime of
drug possession, the defendant’s rights to due process were violated when
there was no mens rea requirement. Under the protected personal liberties
aspect of due process, the Court found that mens rea is the rule, and not the
exception to criminal laws. It found further that a law cannot criminalize
"essentially innocent" conduct. See, eg. City of Seattle v. Pullman, 82 Wn.2d
794, 514 P.2d 1059 (1973).
The Supreme Court emphasized the serious consequences to
defendants convicted of a strict liability drug offense, such as the felony
statute imposes harsh consequences for passive conduct; it carries the
maximum penalty of 5 years in jail and a $10,000.00 fine. Also, felony
convictions strip defendants of many fundamental rights at the time of
incarceration and long after, as well as harsh collateral consequences of
being a convicted drug offender.
Justice Stephens’ dissent opinion asserts that the majority opinion
goes to far when all they had to do was declare the pre-Blake rulings not
requiring a mens rea element for the drug offense was wrong, and to overturn the contrary decisions. She writes that the common law principle of
mens rea is foundational to the criminal justice system, which is supported by
(1) RCW 9A.04.060 ("...the provisions of the common law relating to the
commission of crime...shall supplement all penal statutes of this state."); (2)
US Supreme Court caselaw (eg. Staples v. United States, 511 U.S. 600
(1994)); and the Uniform Controlled Substances Act §401( c), which requires
a defendant "knowingly or intentionally" possess a controlled substance.
Washington is the only state to maintain a strict liability drug possession
statute, both in its language and its interpretation.
We are asked to follow the ruling in the Blake majority decision in that
our drug offenses are strict liability, with no mens rea element in the offense.
We have found that declaring a tribal statute unconstitutional or otherwise
invalid should be the last resort of our inquiry when presented with the
question. Wiley v. CCT, 2 CCAR 60 (1995). We must first analyze whether the
proper case is before us to do so.
Appellant’s case is clearly distinguishable from the facts in Blake.
First, Appellant specifically acknowledged his culpability in his statement of
guilty plea in 2018. He specifically stated he possessed methamphetamine
and heroin. He was represented by a spokesperson at his guilty plea hearing;
if innocent this would have been the time to raise the argument.
In Blake the defendant claimed she had no knowledge she had drugs
in her pocket. The Blake Court found this to be essentially innocent
possession, and that upholding the strict liability element of the drug
possession charge violates the due process rights of defendants acting with
innocent conduct. Appellant’s guilty statement does not support an innocent
possession.
Further, Appellant’s sentence is not akin to the potential penalties
recognized by the Court that Blake was subject to, i.e. felony record, felony
jail time/fine, and so on. These were important considerations the Court
recognized in its decision.
The facts in this case show further that Appellant has made attempts
to not fulfill his sentence by filing other Appeals after he has been ordered to
jail. It raises the question of whether Appellant is grasping at straws in this
case. He was sentenced three (3) years ago, and now is trying to overturn
that conviction by hanging his hat on the Blake case in order to avoid his
reinstated sentence. Any question of constitutionality of his sentence is not
viable at this time.
For these reasons, we find that even though it is in our responsibility
to review statutes for constitutionality, and even though the question of strict
liability of our drug possession offenses may be relevant to a case in the
future, this is not the case. Based on our reasoning above we AFFIRM the
Trial Court order of June 25, 2021, and REMAND to the Trial Court for actions
consistent with this order.
Zachery LOVE, Appellant,
vs.
Steven AYCOCK, in his official capacity as Chief Judge; Jack
FERGUSON,
in his official capacity as Councilman; Rodney CAWSTON, in his
official
capacity as Chairman; Marvin KHEEL, in his official capacity as
Councilman;
Richard SWAN, in his official capacity as Councilman; COLVILLE
CONFEDERATED TRIBES; Steve BROWN; in his official capacity as
Chief of Police; Marty RAAP, in his official capacity as attorney
for the Office of Reservation attorney; and TRIBAL TRIBUNE.
Case No. AP21-017, 8 CTCR 14
15 CCAR 49
[Appellant appeared pro se.
William Dow appeared for Appellees.
Trial Court Case No. CV-OC-2021-44112]
Decided April 5, 2022
Before Chief Justice Anita Dupris
Dupris, CJ
This matter is before the Court of Appeals (COA) on Appellant’s
Motion to Reinstate Appeal filed on March 1, 2022. An Opposition to Motion
to Reinstate Appeal was filed by Appellees on March 17, 2022. Upon review
of the facts and the record, the COA finds Appellant has failed to show
adequate cause to reinstate the appeal. The Motion is therefore denied and
the matter closed13.
The COA has jurisdiction to hear this matter. COACR 5.
HISTORY
On November 30, 2021, Appellant filed a Notice of Appeal of a Tribal
Court order entered on November 3, 2021 which found the Appellant had
been disbarred on June 22, 2021 and dismissed the action against the Chief
Judge. On December 10, 2021, the COA Clerk sent a letter to Appellant
advising him that his appeal would not be perfected until he complied with the
Court Rules, i.e. filing an original and three working copies (COACR 8 (a)).
No response was received from Appellant. On January 18, 2022, the COA
entered an Order Dismissing Appeal as Imperfected.
On March 1, 2022, Appellant filed a Motion to Reinstate Appeal.
Appellant alleged that the December 10, 2021, letter sent to him failed to cite
to any statutory authority as to what was needed to be "corrected." He also
alleges that on January 4, 2022, he was out of the country for 14 days, and
did not receive any notices from the COA during that time. He did receive the
letter of December 10, which stated that the appeal could not be perfected
until he complied with the court rules concerning filing of the original and
three copies14. He also alleges that since the COA did not put "with
prejudice" on its Order, the Order is entered without prejudice, which would
allow either a refiling or a motion to reinstate.
On March 3, 2022, an Order on Motion to Reinstate Appeal was
entered by the COA. The COA reserved ruling on the Motion to Reinstate,
gave Appellant two weeks to file proof of service15 of his motion on Appellee,
along with legal memorandum to support his motion. Upon receipt of the
Motion, Appellees were given two weeks to file their response. Appellant was
also instructed to only contact the Clerk of Court in writing. As of this date, no
response was filed by Appellant on the proof of service of the Motion on
Appellees.
On March 17, 2022, spokesperson for Appellees filed an Opposition to
Motion to Reinstate Appeal. Appellees assert that COACR 8(a) is specific as
to what was required and there is no dispute that it was not satisfied by
Appellant.
DISCUSSION
The case in front of the COA is one of first impression. Appellant has
filed a Motion for Reinstatement of Appeal. There is no rule in the Court of
Appeals Rules nor any statutory law the Colville Tribal Law and Order Code
that allows for Reinstatement of Appeal. COACR 17, Motion for
Reconsideration; Finality of Order or Opinion, which is more relevant, states
"Any party who is in disagreement with the final decision of the COA, may
request that the COA review its decision." The Rule goes on to state that the
Motion must be accompanied by an Affidavit, be specific as to what is being
requested, and must be filed within ten days of receipt of the decision or
order. In the instant case, Appellant did not file his Motion until approximately
41 days after its issuance. Even allowing for 3-5 days for the mail service,
Appellant was well over the time allowed for the Motion for Reconsideration.
Court of Appeals Court Rule 8(a)’s first paragraph ends with the
statement, "All documents filed shall be by an original and three working
copies unless otherwise ordered." Colville Tribal Law and Order section 1-2112(a) also has a concluding sentence in its first paragraph, "All documents
filed shall be by an original and three working copies, unless otherwise
ordered." Appellant only filed his original Notice of Appeal. He was advised
that he needed to comply with the Court rule "regarding filing an original and
three working copies." Appellant still has not provided the three working
copies to the COA.
Appellee states that it is not the COA’s obligation to provide Appellant
legal advice. The letter that Appellant alleges was "broad, ambiguous, and
vague," actually precisely told Appellant what was needed to be done and
where to look to find it. He had six weeks from the December 10th letter and
the January 18th Order to read and comply. Appellee also noted that
Appellant’s argument that the COA didn’t include proof of service or tracking
with the letter and that he was out of town on January 4-18, 2022 were red
herrings. Appellant never states he didn’t receive the letter, only alleges how
the letter was mailed. He attached a copy of the letter to his motion which is
proof he did receive it.
Further, there is no rule that the COA’s orders are automatically
without prejudice if not specifically stated as such. Appellee’s argument that
Appellant should not be allowed to extend his time to file a perfected appeal
by not properly filing it in the first place has merit. Failure to properly file an
appeal should not allow an Appellant to restart the clock once he gets an
order dismissing it as not perfected. If it was not perfected in the first place,
any subsequent appeal would be untimely.
To be admitted to the Colville Tribal Court Bar, a spokesperson must
sign an Oath that states, in part, "I have read the Colville Tribal Law and
Order Code and am familiar with its contents;" and "I will abide by the rules
established by the Council and the Colville Tribal Court." It is clear that
Appellant has not adequately read the Colville Tribal Law and Order Code
regarding appellate procedures, nor has he adequately read the COA Court
Rules. Both are relatively short and concise.
CONCLUSION
It is clear that Appellant has not followed the COACRs or the Orders
of the Court. He has failed to submit proof of service on Appellees of his
Motion to Reinstate Appeal. He has failed to submit the three working copies
as required. He has not met the deadline specified for a Motion for
Reconsideration. Finally, he has not shown adequate cause for the COA to
grant his motion.
It is ORDERED that the Motion to Reinstate Appeal is DENIED WITH
PREJUDICE and REMANDED to the Trial Court for action consistent with this
Order.
Nikki DICK and Carla MARCONI, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP21-008 and 009, 8 CTCR 15
15 CCAR 52
[M. Carroll, appeared for Appellants.
P. Erbland, appeared for Appellee.
Trial Court Case Nos. CV-OS-2016-39179 and CV-AD-2016-39000]
Decided June 13, 2022
Before Presiding Justice Mark W. Pouley, Justice David C. Bonga, and
Justice Michael Taylor
Pouley, J.
FACTS
Appellants Nikki Dick and Carol Marconi were both employed by the
Tribes. In November of 2007 the Tribes, attempting to address financial
shortfalls, terminated many employees, including the Appellants. Appellants
both filed appeals pursuant to the Tribes’ Employment Policy Manual. In June
2008, an Administrative Law Judge made favorable rulings for both
Appellants. The ALJ overturned their terminations, awarded back wages, and
ordered their reinstatement. Despite the outcome of the ALJ review, the
Tribes did not pay the back wages or reinstate the Appellants to their previous
positions. Appellants filed complaints in the Colville Tribal Court.
In July 2008 the trial court upheld the substance of the ALJ order,
overturning the employment terminations. However, the court noted that the
jobs subject to reinstatement no longer existed and were not budgeted for. In
addition, the Tribe had not budgeted to pay back wages. The Court noted its
limited authority to order the Business Council to act, so the court encouraged
the parties to negotiate a settlement. The matter returned to the trial court in
May 201116 after the parties attempts at settlement were unsuccessful.
Consistent with its earlier ruling, the trial court upheld the ALJ decision, but
dismissed the Appellants’ actions, finding the court did not have authority to
require the Tribes to reestablish the jobs or budget for them. In addition, the
court did not have authority to award monetary damages since there was no
insurance policy to pay the damages. No appeal was taken from this order.
The matter before this court was filed on July 29, 2016. Appellants
claim they discovered that an insurance policy existed at the time of the
original suit. They claim the Tribes intentionally or negligently withheld this
information at the time of the original action. The Tribes tendered Appellants’
claims to their insurer, AIG Insurance, who issued a coverage letter in August
2017. The insurer declined coverage, citing specific exclusion language within
the policy and additional language excluding payment of "back wages"
contained in Employment Related Liability Endorsement. This appeal
followed.
DECISION
As the issues before the court are matters of law, the standard of
review is de novo. Naff v CCT, 5 CCAR 50 (1995).
The 2011 final judgment of the trial court was not appealed so the
decision rendered by the court is final. To the extent Appellants’ current
pleadings challenge the findings of the court or seek to "reopen" litigation of
the points already decided, Appellants’ claims must fail. The only valid
question is whether the Appellants have an actionable claim against the
Tribes based on the allegation that the Tribes failed to disclose the existence
of insurance coverage at the time of the original litigation. We find that no
actionable claim exists, and we therefore AFFIRM the trial court’s dismissal of
Appellants’ claims.
It is well established that the Colville Confederated Tribes, as a
sovereign, may not be sued unless it waives that sovereign immunity. In
addition, the Tribes may limit any such waiver to specific claims and
remedies. CTEC v. Orr, 5 CCAR 1, at 4 (1998). The Colville Civil Rights Act
provides a limited waiver of sovereign immunity, and this court has reviewed
permissible claims and remedies allowed by the waiver numerous times. We
do so again in this case.
CTC 1-5-2 enumerates specific civil rights protected by the code. CTC
1-5-4 only allows actions seeking declaratory and/or injunctive relief to be
brought in the Tribal Court to protect the enumerated rights. CTC 1-5-8 allows
for an award of monetary damages only to the extent there exists an
insurance policy that will cover the claimed loss. There is no requirement that
the Tribes maintain any insurance policy or that any policy that exists provide
any specific scope of coverage. In other words, the Tribes may further limit
the narrow waiver of immunity by simply not seeking or providing coverage
for any alleged civil rights violations.
In the 2011 rulings on the matters, the trial court entered declaratory
relief as provided in CTC 1-5-4. Unfortunately, the court also concluded that it
had no authority to order the Colville Business Council to create and budget
the job positions once held by the Appellants. The court correctly found that
the Appellants were damaged by the Tribes’ actions, but that the court lacked
any available remedy. This decision was not appealed and thus stands. The
court also found that since the Appellants did not present an insurance policy
that provided coverage for back wages awarded by the ALJ, and affirmed by
the court, those claims too must be dismissed. This decision was not
appealed, but Appellants now claim the Tribes improperly withheld the
existence of such a policy and that damages should be awarded because of
the Tribes’ misconduct. Regardless of how one gets there, the only damages
that could possibly be awarded are for "back wages" as awarded by the ALJ.
In this case the trial court correctly found that even if the claims may
be resurrected from dismissal in 2011, unlawful discharge, malpractice,
misfeasance and malfeasance, unlawful retaliation, negligence and negligent
supervision, and outrage all sound in tort and are not civil rights violations
enumerated in 1-5-2. These claims are absolutely barred by sovereign
immunity and no express waiver of immunity exists. The claims were correctly
dismissed in 2011 and there is no basis to reexamine them today. Likewise,
the court correctly found the court may not order Appellants’ reinstatement as
that issue was decided in 2011 and never appealed.
Appellant’s claim the Tribes acted wrongfully by not disclosing a valid
insurance policy during the original litigation. They further argue that such
failure constitutes an "Error, misstatement, misleading statement, omission,
neglect or breach of duty of the INSURED; that arises out of the discharge of
duties for the NAMED INSURED, individually or collectively" which is a
covered loss under the Colville Business Councils Errors and Omissions
insurance policy in effect in 2006-2007. Even if true, this argument does not
create an actionable claim because the alleged misconduct is not an
enumerated civil rights violation. For that, Appellants reach back to the 2011
findings that their civil rights were violated when the Tribes failed to comply
with the ALJ order. The only claim of damages Appellants might assert under
CTC 1-58 then, is for "back wages" which were awarded, but never paid.
In Gibson v. CTC, 14 CCAR 39 (2019), this Court held that the Tribes
may raise sovereign immunity as an absolute defense to actions brought
under CTC 1-5-8, regardless of the existence of insurance coverage. In
Williams v. CTC, AP 19-014 this Court held that when sovereign immunity has
not been asserted as an affirmative defense, and when an insurance policy is
presented, the court must enter a process of fact-finding and legal analysis to
determine if damages may be awarded. The court may only award damages
for injuries suffered because of violations of rights enumerated in 1-5-2. If the
claims meet this first test, only damages covered by a valid and enforceable
insurance policy may be awarded by the court. As this court held in both
Gibson and Williams, regardless of the existence of any insurance policy, the
Tribes, as sovereign, may assert complete immunity from suit or direct the
Tribes’ liability insurer to raise sovereign immunity as a defense.
In the original action between these parties the Tribes asserted
sovereign immunity as a defense to the award of damages, no claim was
tendered to an insurer for review of coverage, and no policy was presented to
the court. While the 2011 decision is not before this court for review, it is clear
the court correctly dismissed the Appellants’ claims for damages. Does the
Tribes’ failure to present an existing policy during the original litigation open it
to a valid claim for damages in this case?
When this matter was filed, the Tribes tendered the claim to their
insurer. After full review the insurer concluded that there is no coverage for
an award of "back wages." The Appellants attempt to argue that other
language in the policy might support another conclusion, but the exclusion of
back wages is clear an unambiguous and leaves no doubt there is no
coverage for the Appellants’ only civil rights claims. Like the court did in 2011
the 2021 order before us also correctly dismissed the Appellants’ claims for
damages.
This court is not blind to the unfortunate position to which the
Appellants are left by our decision. As Judge Aycock identified in his first
ruling in this matter, the Appellants were wronged by the Tribes’ actions, and
they deserve a remedy. In his order Judge Aycock encouraged the Tribes and
the Appellants to negotiate a settlement that might at least partially satisfy
everyone. Unfortunately, the parties were unable to do that and the Colville
Tribal Court system, at trial and appeal, is unable to fashion a satisfactory
remedy.
The decision of the trial court is AFFIRMED.
John WHITELAW, Appellant,
vs.
Ramona CAMPOBASSO and Melissa CAMPOBASSO, Appellees.
Case No. AP22-005 IA, 8 CTCR 16
15 CCAR 56
[Mark J. Carroll, for Appellant.
Appellees appeared pro se.
Trial Court Case No. CV-EV-2021-44144]
Decided June 23, 2022
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice
Dennis L. Nelson
Dupris, CJ
PROCEDURAL HISTORY
On August 27, 2021 Ramona and Melissa Campobasso, Appellees
herein, filed a Civil Complaint for Unlawful Detainer, Writ of Restitution, and
Waste against John Whitelaw, Appellant herein. On October 12, the Court
granted Appellee’s Motion and Affidavit for Substituted Service in chambers,
without a hearing on record. The Court also set an eviction hearing for
December 7, 2021.
Appellees stated on record that they had documentary proof of
substitute service by publication in the Star newspaper and by posting the
Notice and Summons in two different places on the Reservation. Appellees
did not file the written proof with the Court, so we could not verify such proof
of service from reviewing the record.
On November 15, 2021 Appellant filed an Answer and Affirmative
Defense to the Civil Complaint, and Appellant’s Spokesperson, Mark Carroll,
filed a Notice of Appearance on behalf of Appellant.
On December 7, 2021 Court entered Orders enforcing Unlawful
Detainer and Writ of Restitution for Appellees and against Appellant. Neither
Appellant nor his Spokesperson appeared at the December 7, 2021 hearing.
The Court order states both parties had been properly served Notice of the
hearing.
On October 28, 2021 a Court Clerk served Appellant a copy of the
Order of Substituted Service dated October 12, 2021 which directed
Appellant to file his answer with 20-30 days, or a default judgment may be
entered against him. The same Order of Substituted Service set an eviction
hearing for December 7, 2021.
Appellant complied with the Order of Substituted Service by filing an
Answer and Affirmative Defenses on November 15, 2021, along with a Notice
of Appearance by his Spokesperson, Mark Carroll. Mr. Carroll was not served
Notice of the December 7, 2021 hearing. The record does not reflect any new
Notice of Hearing for the December 7, 2021 hearing after Appellant and his
Spokesperson filed the Answer and Affirmative Defenses.
In the December 7, 2021 hearing an Order to Enforce Unlawful
Detainer and Writ of Restitution was entered on record and signed on
February 4, 2022. The Court found that both parties had been properly
served, and Appellant and his Spokesperson failed to appear. The record
does not reflect proper service of the December 7, 2021 hearing on either
Appellant or his Spokesperson .
On March 2, 2022 Appellant filed a Motion to Reconsider the
December 7th Order, and asked for a trial on the merits. This Motion to
Reconsider was denied by the Court by Order dated April 22, 2022. The
Judge held, in its Order denying Reconsideration, that Appellant’s
Spokesperson filed a Notice of Appearance on November 15, 2021, and
Appellant was served notice of the hearing by a Court Clerk on October 28,
2021.
The Court further found, in its Order of April 22, 2022:
1. Appellant and his Spokesperson failed to appear for the December
7, 2021 hearing, which was the only chance to give their version
of the dispute.
2. Appellant was given notice of the December 7, 2021 hearing on
eviction when the Court Clerk personally served him the Order for
Substitute Service, which had the Court date in it.
3. Spokesperson Carroll filed an Notice of Appearance on November
15, 2021, and it was Appellant’s responsibility to make sure his
Spokesperson had all the relevant information, such as, among
other things, the hearing date of December 7, 2021.
4. The Court did serve all the parties with the December 7, 2021
hearing.
Based on the above, the Court denied the Motion.
Appellant filed an Interlocutory Appeal on May 13, 2022, to which
Appellee has not filed a response or objection.
Based on the foregoing, we granted the Interlocutory Appeal, and at
the Initial Hearing we found errors of law sufficient to reverse and remand.
ISSUES
1. Did the Court err by granting a default hearing after Appellant’s
Spokesperson filed an Answer and Affirmative Defenses prior to
the December 7, 2021 hearing?
2. Did the Court err by not notifying Appellant’s Spokesperson of the
December 7, 2021 hearing?
3. Did the Court err by not issuing a separate Notice of Hearing for
December 7, 2021 after Appellant filed an Answer and Affirmative
Defenses?
STANDARD OF REVIEW
The three identified issues are issues of law. We review de novo. Naff
v. CCT, 2 CCAR 50 (1995).
DISCUSSION
Appellant raised three grounds for an Interlocutory Appeal:
1. The Trial Court has committed obvious error which would render
further proceedings useless;
2. The issues presented involve controlling issues of law as to which
there is substantial grounds for difference of opinion and that an
intermediate appeal from the decision may materially advance the
termination of the litigation; and
3. The Trial Court has departed from the accepted and usual course of
judicial proceedings.
Based on our discussion below, We find the Court did commit
reversible error on all three grounds and we will reverse and remand for a
trial.
1. Did the Court err by granting a default hearing after Appellant’s
Spokesperson filed an Answer and Affirmative Defenses
prior to the December 7, 2021 hearing?
The Order of Substituted Service of October 12, 2021 had a Court
date set of December 7, 2021; it also had language that told the
Respondent/Appellant if he did not respond in a timely fashion that a default
judgment could be entered against him. Appellant did file a timely response,
and retained a Spokesperson to represent him in the matter.
The record does not reflect why the Court would set an Eviction
Hearing in an Order for Substituted Service. This is not standard practice.
There is nothing in the record that shows Appellee, as Petitioner, asked the
Court for a hearing date by separate Motion and Affidavit. The Court did not
issue a separate Notice of Hearing for the December 7, 2021 eviction hearing
that comports with due process. The Court went ahead with a default hearing
even though Appellant and his Spokesperson notified the Court they were
participating in the case.
We have held :
"Parties must have reasonable notice prior to any substantive
hearing to allow the parties time to prepare their respective
cases [cites omitted]... When a person is not given adequate
notice of what is to be considered in a hearing, all the other
procedural rights are impacted. He does not have adequate
time to prepare for the hearing, and to submit evidence on his
own behalf.... the parties have a right to present their evidence
in a meaningful manner. The judge is the gatekeeper of due
process. It is the Court’s responsibility to ensure adequate
notice is provided to every litigant, and to allow everyone who
appears in Court to have his say, in his own way." Lezard v.
Conto, 10 CCAR 23 (2009).
To further compound the error, the Court, in it’s Order Denying
Reconsideration, April 22, 2022, found it was Appellant’s responsibility to
notify his Spokesperson of the December 7, 2021 hearing set out in an Order
for Substituted Service. This is not standard practice; once a Spokesperson
has filed a Notice of Appearance, it is required that the Court include him or
her in all Notices. Default judgments are to be considered only if, after
adequate notice, the responding party does not respond. This is not the case
here. The Trial Court committed reversible error, we so hold.
2. The issues presented involve controlling issues of law as to
which there is substantial grounds for difference of opinion
and that an intermediate appeal from the decision may
materially advance the termination of the litigation.
The crux of the Interlocutory Appeal is that Appellant was not afforded
adequate procedural due process. He was denied his opportunity to present
his evidence before a judgment was rendered against him. The Court, in its
April 22, 2022 Order, finds that Appellant was given notice of the December
7, 2021 eviction hearing, and it was his responsibility to share the information
with his Spokesperson; the Court found that "This was the one and only
opportunity that they had to present their version of the dispute in question."
Order Denying Motion for Reconsideration at page 1.
As we stated under Issue 1, supra, the Notice the Court relied on was
inadequate. Appellant has stated sufficient evidence and law to support this
ground for an Interlocutory Appeal, and we find the Court made a reversible
error. We so hold.
3. The Trial Court has departed from the accepted and usual
course of judicial proceedings.
The first departure from the usual course of judicial proceedings was
when the Court set an eviction hearing on a Notice and Summons by
publication. The Notice and Summons was answered by Appellant, and that
precluded going forward for a default hearing without sufficient notice to
Appellant. See, for example, Washington Court Rule 55. Appellant’s
spokesperson was also not served notice. Our Court does not have a
separate court rule for Default Judgments, so we must look elsewhere for
guidance. CTC, section 2-2-102, Applicable Law.
The second departure is when the Court held it did not have to notify
Appellant’s Spokesperson of the December 7, 2021 hearing, and that it was
his client’s responsibility to do so. This premise is not supported by any law,
statutory or case law, that we are aware of. This is in violation of basic tenets
of procedural due process. We so hold.
Based on the foregoing, we hold that the Court committed reversible
errors in not providing Appellant adequate due process, and that he has the
right to present his evidence in this matter before a final judgment can be
entered.
It is so ORDERED, and this matter is REVERSED and REMANDED to
the Trial Court for actions consistent with this Order.
Selena ADRIAN, Appellant,
vs.
Buffy Nicholson and Skywalker Renion, Appellees.
Case No. AP22-003, 8 CTCR 17
15 CCAR 61
[Appellant appeared Pro se.
Appellees appeared Pro se.
Trial Court Case No. CV-CU-2021-44154]
Decided July 11, 2022.
Before Chief Justice Anita Dupris, Justice Mary Finkbonner, and Justice
Dennis L. Nelson
Dupris, CJ
PROCEDURAL SUMMARY
On September 15 2021 Appellee filed a Petition for Custody and/or
Support for the minor child, K.R., and against Appellant and Skywalker
Renion, the parents of K.R..17
Also on September 15, 2021 Appellee filed a Motion and Affidavit for
emergency restraining orders, temporary custody orders, and an Order to
Show Cause to Intervene in Custody. The Court granted temporary custody,
visitation, and restraining orders on September 16, 2021, and set a Show
Cause for September 20, 2021.
At the September 20, 2021 Hearing Appellant asked for a continuance
to get evidence to present. The Court granted her Motion to Continue and
ordered that the temporary orders would continue. The Show Cause was
continued to September 27, 2021.
On September 27, 2021 Appellee filed an Amended Petition for
Custody and/or Support in which she added a co-petitioner, Shannon C.
Nicholson.
At the September 27, 2021 Show Cause hearing the Court found "
[Appellant] wants the help of [Appellee] to help with [minor]." The Court
granted Appellee temporary custody with visitation and ordered Appellant
could not remove minor from Appellee. The Court then set a "status hearing"
for December 7, 2021. The Order of September 27, 2021 hearing was not
signed until October 16, 2021.
The record shows the Court held another Show Cause hearing on
January 11, 2022 at which Appellant did not appear. The Order states
Appellant was served Notice of this hearing, but the Notice is not reflected in
the Court’s records. Appellees were granted temporary custody. The Court
then set a Custody Hearing in the Order of January 11, 2022, and gave notice
of the Custody Hearing set for February 22, 2022 with the following language:
"THIS ORDER SHALL SERVE AS NOTICE TO ALL PARTIES OF THE
NEXT SCHEDULED HEARING."
At the Custody Hearing on February 22, 2022, the Court granted
Appellees permanent custody of K.R., finding it was in the minor’s best
interests to grant Appellees custody. The Court took judicial notice of a MinorIn-Need-of-Care (MINOC) case in its findings. Further it found that Appellant
had a recurring drug problem, while at the same time recognizing Appellant’s
testimony that she was currently in a treatment program.18
The Court, after being notified on record of her new address, sent the
final order of custody to Appellant to her old address. She filed her Appeal on
April 18, 2022, eight days passed the normal 30-day limit, counting from the
time she actually got a copy of the final order.
We granted the Appeal and held an Initial Hearing on June 17, 2022.
At the Initial Hearing we found (1) good cause to go forward with the appeal;
(2) the Court committed reversible error because its Notice of Hearing for the
Custody Hearing did not comport with the law on what is to be included in the
Notice; (2) the Court committed reversible error by not applying the requisite
standards in taking judicial notice; and (3) the Court committed reversible
error in not applying the correct standards for third party custody actions.
Based on the reasoning below, we reverse and remand.
ISSUES
Appellant raises three Issues:
1. Did the Court err in not providing adequate notice of the permanent
Custody Hearing held on February 22, 2022?
2. Did the Court err in not applying the correct standards for taking
judicial notice of a MINOC case?
3. Did the Court err in not applying the correct standards for a third
party custody case?
Appellee raises the issue:
1. Should the Appeal be dismissed as untimely, as the Order of
Custody was entered on February 22, 2022, and signed on March
8, 2022, 40 days before the Appeal was filed?
STANDARD OF REVIEW
All four issues are issues of law, and will be reviewed de novo. Naff v.
CCT, 2 CCAR 50 (1995).
Timeliness of the Appeal
The final Order was entered on Record on February 22, 2022, signed
on March 8, 2022, and mailed on March 11, 2022. The record shows the
Court mailed the Order to the wrong address. The Court file indicates the
Clerk sent the Order to her old address, and that it was returned as
undeliverable. She gave the Court her current address at the Feb. 22, 2022
hearing (it is noted in the Judge’s notes from the hearing). She filed it on the
38th day from the time it was mailed, 8 days after the 30-day time limit for
filing an appeal.
We have held that "It is the Court of Appeals’s duty to decide what the
law is and to administer justice fairly. This Court may make exceptions to
procedural rules when the issues presented are of such a serious nature that
this Court should reach a decision in spite of the procedural flaws." Gallaher
v. Foster, 6 CCAR 48 (2002). The Appellant is pro se. The nature of the
Court’s errors are such that there is good cause to grant the Appeal under the
standards established by the Gallaher case. We so hold.
Adequate Notice of a Permanent Custody Hearing
The language that needs to be in a Notice of a permanent custody
hearing has become black letter law in our Courts. In 1991 this Court
recognized the inadequacy of the Code in informing parties of what will be
required in a custody proceeding. We stated:
"The ...Code gives inadequate notice to litigants of the Court’s
requirements that the hearing on permanent custody is the one
and only opportunity for presentation by the litigants of
testimony of their witnesses, and of the requirements for live
testimony. In the absence of an amendment to the Code, the
Trial Court’s notice to the parties setting the hearing should
advise the litigants of those requirements." George v. George,
1 CCAR 52 (1991).
Notices for custody hearings have been required to include specific language
on the due process protections to be afforded to litigants for over 30 years.
The Notice issued by the Court in this case was at the end of a temporary
custody order, and just stated the Order was the Notice for the "next
scheduled hearing." This does not comport with the George requirements,
and is reversible error.
Judicial Notice
We have set standards for taking judicial notice, first in a criminal
case, (Louie v. CCT, 8 CCAR49, (2006)); then in MINOC cases, ( In Re Gorr,
8 CCAR 76 (2006)), and Randall/LaCourse v. CFS, 11 CCAR 39 (2012)); and
finally extended the standards to all cases in a third party custody case,
Whalawitsa v. Kauweloa, 14 CCAR 27 (2018). The following must be
considered when taking judicial notice:
1) Taking judicial notice is disfavored, especially when the
Court takes judicial notice of facts that would prove or disprove
an allegation...; 2) Courts may take judicial notice of public
records, but only to prove the existence of the orders, and not
the proof of the facts therein; and 3) when a Court is going to
take judicial notice, the Judges should (a) give notice to the
parties of what he is going to take judicial notice so the parties
may provide rebuttal evidence; and (b) allow the parties to
present such rebuttal evidence.
The record shows that none of the requirements for taking judicial
notice were followed by the Court in this case. This is reversible error. We so
hold.
Third Party Custody
A third party custody action must first include evidence, or lack of
evidence, on the fitness of a parent. This is a relevant factor which evidence
is first raised by the third-party petitioner to overcome a rebuttable
presumption of the parent’s right to custody. Best interests is the factor to
consider if the presumption of fitness is overcome. Jerred v. Leskinen, 12
CCAR 73 (2016). The Court did not address this standard in its findings. This
is reversible error.
CONCLUSION
Based on the foregoing reasoning, we hold that the errors of the Trial
Court are such that the Appeal is granted, and the order of February 22, 2022
is REVERSED, and this matter is REMANDED for a new trial, which must
comport with all the requisite standards.
It is so ORDERED.
Michael FINLEY, INCHELIUM SHORT STOP, Gene NICHOLSON,
and
GENE’S NATIVE SMOKES, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP22-002, 8 CTCR 18
15 CCAR 65
[Appellant appeared pro se.
William J. Dow, appeared for Appellee.
Trial Court Case No. CV-OC-2021-44000]
Decided June 23, 2022.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Jane
M. Smith
Dupris, CJ
PROCEDURAL SUMMARY
On January 4, 2021 Appellants filed a Complaint for Declaratory
Judgment and Injunctive Relief and Damages against Appellee. The basis for
the Complaint was Appellants’ dispute in the collection of fuel taxes. The case
was filed by Appellants’ Spokesperson, Zachary Love19.
On February 9, 2021 Appellants filed an Amended Complaint, adding
three additional Respondents: Jack Ferguson, Colville Business Council
(CBC) Councilman, Francis Somday, CCT Executive Director, and Janice
Peasley, an accountant for the Colville Confederated Tribes (CCT)20. The
Amended Complaint sought injunctive relief regarding the collection of the
fuel tax in question, and to recover tobacco rebate tax monies being withheld
by CCT.
Appellees filed an answer with affirmative defenses on March 1, 2021.
On March 9, 2021 the Court denied Appellants’ motion for temporary orders
of restraint and preliminary injunction. The Order was signed on March 18,
2021.
The Court entered an Order Granting in Part Defendant’s Motion for
Partial Summary Dismissal on May 25, 2021. The Court held, as a matter of
law, Appellants were bound by the fuel tax agreement with the State of
Washington and were to comply with the law and start paying the fuel tax.
The Court dismissed with prejudice Counts I, II, and IV of the Amended
Complaint, all relating to the legality of the fuel tax agreement entered into
between the CCT and the State of Washington, and its applicability to
Appellants and their businesses.
In the ensuing months between the Order of May 25, 2021 and the
Final Order of Resolution dated March 30, 2022 the record shows the parties
filed other pleadings setting out their positions on the issues that brought
them before this Court. Specifically the issues are (1) the withholding of the
tobacco tax incentives from Appellant Nicholson, and (2) the dispute on the
amount of tax fuel owing by Appellant Finley.
The relevant sections of the Final Order of Resolution of March 30,
2022 are:
(2) Appellants were to comply with the May 25, 2021 orders to pay the
fuel taxes;
(3) No material issue of fact or law regarding Appellants’ failure to
collect fuel taxes;
(4) A judgment of $88,726.86 against Appellant Finley owed for state
fuel taxes;
(5) CCT has withheld $533,018.26 in tobacco incentives from
Appellant Nicholson because of the amount he owes in fuel tax
payments, the time for withholding being from December 18,
2020 to March 3, 2022;
(6) Appellant Nicholson has failed to collect and remit $268,289.10 in
state fuel taxes.
The Final Order also sets out what Appellee has offered as a
resolution to making payments regarding the tobacco payments to Appellants
once Appellants comply with the state fuel taxes owed. The Court accepted
this offer of resolution in its Order.
Although the term "Resolution" was used, Appellants had not agreed
to the terms, specifically the withholding of the tobacco payments from
Appellant Nicholson and the amount owing for state fuel taxes by Appellant
Finley.
On April 11, 2022 Appellant Finley filed a Motion to Reconsider and
Vacate Order stating Appellant Nicholson was in agreement with the motion.
Appellant disagreed with the proposed resolution order presented by
Appellee, and stated he believed they would get a hearing on the evidence
before a final order was entered. He stated he disputes the amount alleged
that he owes on the state fuel tax; he states Appellants’ due process rights
were violated because they were not afforded an opportunity to present their
evidence and arguments. The Trial Court did not rule on this motion.
The Appeal was initially filed as an Interlocutory Appeal on April 11,
2022. We noted that the final orders had been entered and designated it as
an Appeal of a final order, and granted its filing.
An Initial Hearing was held on June 17, 2022, at which all parties
appeared. We found cause to reverse and remand the matter to the Trial
Court for a trial on the issues.
DISCUSSION
Basic tenets of procedural due process are that a party is given
adequate notice and an opportunity to present his case in a meaningful
manner before the Court makes its final decision. See, e.g. Lezard v. Conto,
10 CCAR 23 (2009). The Final Order of Resolution is analogous to an order
granting summary judgment. The Court found no material issues of fact or
law regarding Appellants’ responsibility for paying the state fuel taxes. It did
not rule on the legal basis for allowing the withholding of Appellant
Nicholson’s tobacco payments, nor did it rule on Appellant Finley’s assertion
that the state fuel taxes he was found liable for were not correct.
Although it was termed a "resolution" it is clear Appellants did not
agree with the final orders. Both issues they raised regarding the tobacco
payments and the difference in the amount believed owing for state fuel taxes
go to genuine issues of material facts and law.
For instance, Appellee, at the Initial Hearing, could not state what
legal authority existed to withhold the tobacco payments, yet the Court ruled
on the withholding without a hearing on the issue. The Final Order does not
address Appellant Finley’s assertion that he has evidence that the amount
owing for the state fuel tax is not correct.
We find the Trial Court committed reversible error in not providing
Appellants an opportunity to present their evidence in a hearing before a final
order was entered by the Court. We so hold.
It is ORDERED that the Final Order of Resolution of March 31, 2022 is
REVERSED, and this matter is REMANDED for a trial on the merits of
Appellants’ claims identified herein.
Michael FINLEY, INCHELIUM SHORT STOP, Gene NICHOLSON,
and
GENE’S NATIVE SMOKES, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP22-002 IA, 8 CTCR 19
15 CCAR 67
[Appellant appeared pro se.
William J. Dow, appeared for Appellee.
Trial Court Case No. CV-OC-2021-44000]
Decided August 16, 2022.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Jane
M. Smith
Dupris, CJ
This matter came before the Court of Appeals on a Motion for
Reconsideration filed by Appellee on July 5, 2022. Appellee asks this Court to
not allow a full trial on the merits of the issues before us. Appellee asks that
we consider the tobacco incentive issue for Appellant Nicholson to be moot,
and that we limit the remand for Appellant Finley to only the issue of how
much unpaid fuel taxes are owed. Appellee asks that we change our remand to
reflect that further proceedings be held, and not necessarily a trial.
Appellants’ object to the requests for modification, asserting (1) there
is still no basis identified in law which allows Appellees to withhold the
tobacco incentives in lieu of the payment of unpaid fuel taxes; and (2) they
should be provided an opportunity to present all of their arguments in that
being pro se they were at a disadvantage in being able to do so.
Based on the reasoning set out below we find cause to deny in part and
grant in part Appellee’s Motion for Reconsideration.
DISCUSSION
TOBACCO INCENTIVES ISSUE
Appellee states the tobacco incentive payments are "provided
voluntarily by the Tribes to tobacco retailers such as Appellant Nicholson’s
business."21 (Brief in Support of Appellee’s Motion for Reconsideration, page
2). Appellee acknowledges that the correct amount due Appellant Nicholson
for the tobacco incentives is set out in the Trial Court’s Final Order of
Resolution dated March 30, 202, that is, $533,018.26. The nature of the origin
of the tobacco incentives are not before this Court. The fact is, it does exist.
The question still remains of what legal authority did the Court
exercise in seizing the tobacco incentives without allowing Appellant
Nicholson an opportunity to contest such seizure? We asked this question at
the Initial Hearing on June 17, 2022. The arguments Appellee makes in
support of asking to find the question moot do not address this question.
Instead Appellee sets out what other possible consequences Appellant
Nicholson may face because of his failure to pay his fuel taxes. We find cause
to deny reconsideration of the tobacco incentive inquiry.
FUEL TAXES OWING
Appellee asks that we limit the inquiry of the amount of fuel tax owed
by Appellant Finley to just that issue, and not a full trial on the issue of the
fuel taxes. We agree. The Trial Court entered a judgment that found, as a
matter of law, there was no genuine issue of law regarding the legality of the
fuel taxes agreement between Appellee and the State of Washington, and no
genuine issue of fact regarding Appellee’s liability to pay said taxes.
This appeal was granted as a final appeal even though Appellants filed
an Interlocutory Appeal on the issues. We found it was a final appeal because
the Trial Court’s order of March 30, 2022 (file stamped March 31, 2022)
entered orders of final resolution of the issues presented by way of an order
for summary judgment on the documents and pleadings on file.
Our order in which we granted the Appeal, dated April 29, 2022,
specifically limits the issues on appeal to the withholding of the tobacco
incentives and that the Final Order of Resolution "was entered without
Appellant’s opportunity to present their [sic] evidence on record, including a
disputed amount of the delinquent fuel charges, as well as evidence of their
[sic] ability to pay the delinquent amount ordered."
The issue we identified regarding Appellant Finley, which was not
argued by Appellant Nicholson, was that he had a different amount owing on
the fuel tax, and was not afforded an opportunity to present it and the
circumstances of how it was to be paid to the Court. These are the only issues
left for the Trial Court to make an informed decision on. The legality of the
fuel tax agreement and its applicability to Appellants has already been made,
as a matter of law, and are not open to re-litigation in this case. We so hold.
Based on the foregoing, now, therefore
It is ORDERED that:
This matter is remanded to the Trial Court for proceedings consistent
with due process to address (1) the legal authority to withhold Appellant
Nicholson’s tobacco incentive payments in a case dealing with fuel tax
payments; and (2) the amount of fuel tax owing by Appellant Finley, as well
as an inquiry into his ability to pay it.
Further, the proceedings need not be a trial, as long as the parties are
afforded adequate due process.
Andrea GEORGE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP21-015, 8 CTCR 20
15 CCAR 69
[M. Carroll, appeared for Appellant.
P. Erbland, appeared for Appellee.
Trial Court Case No. CV-OC-2017-40036]
Decided August 12, 2022.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice
Michael Taylor
Taylor, J.
SUMMARY
The Initial Complaint in this matter, claiming jurisdiction and relief
under CTC § 1-5, was filed on March 9, 2017; an Amended Complaint was
later filed. We review this Appeal based on the Amended Complaint.
(Hereinafter the "AC"). In that AC the Appellant asserted claims, iner alia, for
sexual harassment, filure to promote, and defamation. The Appelee Tribes
filed a Motion to Dismiss the AC on June 9, 2017, asserting as defenses
common law tribal sovereign immunity, statute of limitations, and failure to
assert claims of violation of civil rights as defined by CTC § 1-5-2.
The Tribal Court heard Oral Arguments on March 26, 2021, and after
considering all pleadings, Motions and Memoranda of Law, and Tribal cvase
and statutory law, entered an Order granting Appellee’s Motion to Dismiss
and dismissing the Complaint; dated October 18, 2021. The Tribal Court
rviewed each of the Appellant’s six claims for relief, stated above, and found
all beyond the jurisdiction of the Court; potentially barred by the sovereign
immunity of the Tribes, and/or barred by the statute of limitations CTC § 2-231, and/or failure to allege actionable claims, and/or failure to state a claim for
violation of a civil right as defined by CTC § 1-5-2. A timely appeal to the
Court was filed.
We conclude that the holding of the Tribal Court, after its exhaustive
review of the voluminous AC, was correct and must be affirmed; but have a
somewhat more attenuated view of the law supporting the dismissal of that
AC.
STANDARD OF REVIEW
The Code of the Tribes contains a statute of limitations CTC § 2-2-31
and a civil rights act CTC § 1-5. We review here questions of law to determine
whether the AC can go forward after being dismissed in total by the Tribal
Court on the grounds that the claims made by the Appellant are barred by the
statute of limitations and do not fall within the protections provided by the
tribal civil rights act. These are issues of law and are to be reviewed de novo.
Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08 (1995).
DISCUSSION
Statute of Limitations
The Colville Tribal Code includes a statute of limitations CTC § 2-2-31
which provides tht "no complaint shall be filed in a civil action unless the
events shall have occurred within a three years period prior to the date of
filing the complaint..." The Tribal Court ruled that the statute of limitations
barred all of Appellant’s claims based upon allegations of offenses that
occurred before March 9, 2014. We hold the findings of the Tribal Court to be
essentially correct regarding the great bulk of Appellant’s claims set out in her
sixty-page AC. Appellant in her memorandum (Brief) on Appeal, at page 6,
conceded the Trial Court’s findings of a limitation bar to be correct, by listing
six events which Appellant alleges are bases for complaints each of which is
said to have occurred subsequent to March 9, 2014.
On review these six allegations present several problems for Appellant
which prevent this Court from basing upon them any reversal of the Tribal
Court’s dismissal of the AC. First, there allegations assert claims of standard
tort, contract, or wage claims which are not included in the listing of protected
civil rights in CTC § 1-5-2. Second, several of these allegations describe
events in which no harm or damage to Appellant is shown. Third, with regard
to allegation No. 5, we cannot find anything in the AC that supports this
allegation. No. 5 was not pleaded. Finally, as set out below, none of these
allegations survive the unwaived sovereign immunity of the Tribes.
SOVEREIGN IMMUNITY
Appellant filed a Civil Complaint for Violation of Civil Rights against the
Appellee Confederated Tribes of the Colville Reservation. Appellant claimed
as a basis for her Complaint, and the jurisdiction of this Court, the Colville
Tribal Civil Rights Act (CTCRA) CTC § 1-5. Appellant pleaded an action for
damages to CTC § 1-5-2(h); the denial of equal protection of the Tribes’ laws.
Appellee raised tribal sovereign immunity as an affirmative defense in answer
to the AC and in the Appellee’s Motion to Dismiss the Complaints. W
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