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Patrick YALLUP, Appellant,
vs.
Colville Confederated Tribes, Appellee.
AP11-016-IA, 6 CTCR 01
11 CCAR 01
[Dale F. Braunger, Office of Public Defender, appeared for Appellant.
Sabrina Fenton, Office of Prosecuting Attorney, appeared for Appellee.
Trial Court case number CR-2011-34345]
Decided November 17, 2011.
Before Chief Justice Anita Dupris, Justice Gary F. Bass and Justice Theresa M. Pouley
Dupris, CJ
SUMMARY
Appellant was charged with a criminal offense in the Trial Court. Just prior to the date
set for trial, Appellee filed a motion to continue the jury trial date. It was noted in the motion
that counsel for Appellant had been notified of the motion but had not responded with any
objection. The judge signed the order, which did not have a new jury date assigned yet.
Appellant received an e-mail from Appellee that the continuance had been granted. Though the
Court was out of the office on training, Appellant obtained a copy of the signed order which
still did not have a new date assigned. He immediately filed an interlocutory appeal
challenging the continuance because he did not consent to the continuance and it would have
put the jury trial beyond the speedy trial limit1. An emergency hearing was held by conference
call on November 14, 2011. The COA heard from the parties and then issued a Minute Order
which reversed and remanded the matter to the Trial Court for a hearing on the issue of the
continuance.
STANDARD OF REVIEW
1 The original jury trial date was set for November 8, 2011. Speedy trial limit was
November 18, 2011.Jury trials are held on the 2nd and 3rd Thursday of each month.
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11 CCAR ___
We review findings of fact under the clearly erroneous standard, and errors of law de
novo. Colville Confederated Tribes vs. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995); Wiley, et
al v. Colville Confederated Tribes, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059 (1995); Palmer v. Millard, et
al, 3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996) (Because the Tribal Court dismissed the case
below as a matter of law, we review the matter de novo.); Pouley v. CCT, 4 CCAR 38, 2 CTCR 39,
25 ILR 6024, (1997) (The Appellate Court engages in de novo review of assignments or errors
which involve issues of law); In Re The Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039
(1998). Our review of this matter will be de novo as the issues are a both questions of law and
fact.
ISSUES
1. Are there adequate grounds stated for the Court of Appeals to review this matter as
an Interlocutory Appeal?
2. Did the Trial Court err in granting the Motion to Continue ex parte without the
concurrence of the Appellant or setting it for hearing?
DISCUSSION
Issue 1. Are there adequate grounds stated for the Court of Appeals to review this matter as an
Interlocutory Appeal?
Court of Appeals Court Rule (COACR) 7-A specifies that the Appellant must show
adequate grounds before the COA will review an interlocutory appeal. In the instant case, the
appellant is incarcerated in jail and any new trial date would potentially be set beyond the limit
allowed for the speedy trial rule; that Appellant did not waive his speedy trial rights; and that
the Trial Court judge issued an ex parte order which was issued on a motion that was not joined
in by opposing counsel and which counsel was not given an opportunity to be heard on his
opposition to the continuance. Immediate review of this matter would materially advance the
ultimate termination of the litigation and the Trial Court has so far departed from the usual
course of judicial proceedings as to call for a review by the COA. We find that Appellant has
shown sufficient grounds for the COA to review this Interlocutory Appeal.
Issue 2. Did the Trial Court err in granting the Motion to Continue ex parte without the
concurrence of the Appellant or setting it for hearing?
Colville Tribal Law and Order (CTLOC) Code Section 1-2-10, Timely Filing of Motions,
specifies that written motions must be filed at least five (5) days prior to a hearing. Opposing
motions shall be filed at least one (1) day prior to the hearing. Motions must be supported by
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11 CCAR ___
an affidavit, which must be filed with the motion. All motions are to cite governing rules
and/or laws of the Colville Tribe. CTLOC § 1-2-8 specifies that a party must serve any legal
document on opposing counsel at least three (3) days prior to trial.
[N]otice is one very basic part of due process. Whenever any document is filed in court,
notice of that document must be served on the opposing party, with a few exceptions. CCT v.
Dogskin, 10 CCAR 45, 5 CTCR 31 (02-02-2011). 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. DeConto, 10 CCAR 23,
5 CTCR 25, 36 ILR 6010 (12-16-2009). Basic principles of due process include notice and the
opportunity to be heard. Finley v. CTSC, 9 CCAR 71, 5 CTCR 18, 36 ILR 6004 (11-21-2008).
In the instant case, a jury trial had been set for November 10, 2011. Appellee filed its
motion on November 8, at approximately 2:12 p.m.2 It was noted in the Motion that notice had
been given to Appellant, but no response had been received. However, no affidavit of service
was attached to the motion, contrary to CTLOC § 1-2-10, which would indicate when Appellant
was served and if he had adequate time to respond to the motion. At approximately 2:23 p.m.3,
on that same day, the Order was signed by a judge. The Order was apparently then given to a
clerk to insert a new trial date.
We find that there were several errors committed by the Court. First, the Court acted on
a Motion that was not supported by an Affidavit4. Affidavits are statements of facts regarding
th issue at hand which are sworn to before an officer who has authority to administer an oath,
such as a Notary Public. The person making the affidavit is stating that to the best of his/her
knowledge, the contents of the affidavit are true.
Second, the Motion was not timely filed. CTLOC provides that motions are to be filed at
least five (5) days prior to any hearing. The instant motion was filed less than two (2) days prior
to the jury trial. The additional witnesses were known for at least a month prior to the trial. It
was not noted in the Motion what efforts were done to locate them, if they had even been
subpoenaed, or what weight their testimony might provide to the ultimate decision of the trier
of fact. As to the officer’s vacation, it was not noted when the Tribes received notice of the
2 Motion/Order to Continue. “Filed” stamped, page1 [Motion}, “2011 Nov -8 PM 2:12.”
3 Motion/Order to Continue. “Filed” stamped, page 2 [Order}, “2011 Nov -8 PM 2:23.”
CTLOC § 1-2-10. “Motions shall be supported by affidavit, which shall be served
with the motion.”
4
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vacation plans, when was the officer subpoenaed, or what weight his/her testimony might
affect the outcome of the trial.
Third, the Trial Court did not allow adequate time for the Appellant to respond to the
Motion. CTLOC 1-2-10 allows the non-moving party one day prior to a hearing in which to
respond to motions. In this case, the judge signed the Order within minutes of it being filed. It
appears that no attempt was made by the Court to determine if service had been given to the
Appellant, if he was in concurrence with the motion or if he had any arguments against the
continuance. Had the Court held an immediate hearing, an agreement might have been made
which would have moved the trial forward on the original day or found some other way in
which to not violate the Appellant’s speedy trial rights.
While this Court is cognizant of emergency circumstances, the issues as cited in the
Motion do not rise to the level which would overcome the burden to protect the Appellant’s
speedy trial rights. Any one of the errors committed alone might have been harmless error,
their cumulative effect was of a denial of Appellant’s right to due process. We find that the
Trial Court erred in granting the Motion to Continue without concurrence by the defendant
and by not holding a motion hearing.
CONCLUSIONS
The Trial Court erred by granting a Motion to Continue which potentially would be
scheduled for a date beyond the speedy trial limit and which 1) was not supported by an
Affidavit; 2) was without adequate evidence that the motion was served on Appellant by
having an Affidavit of Service attached; 3) did not contain an acknowledgment that Appellant
concurred with the motion; and 4) a hearing on the motion was not held. This matter is
Remanded to the Trial Court to schedule a hearing on the Motion to Continue and Appellant’s
reply. The Order issued on November 8, 2011 is hereby Reversed.
It is SO ORDERED.
Douglas SEYMOUR, Sr., Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
AP11-008, 6 CTCR 02
11 CCAR 04
[Eric Christensend, Cossey & Associates, for Appellant.
Melissa Simonsen, Office of Prosecuting Attorney, for Appellee.
Trial Court Case number CR-2009-32327]
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Decided March 28, 2012
Before Chief Justice Anita Dupris, Justice Earl L. McGeoghegan & Justice Theresa M. Pouley
This matter is before the Court of Appeals (COA) for appeal of an Order issued by the
Trial Court which continued a jury trial and reset it as a judge trial. Oral arguments were not
heard. The appeal will be decided on the briefing submitted by the parties. Eric Christensen,
Cossey & Associates, is representing the Appellant. Melissa Simonsen, Office of Prosecuting
Attorney, is representing the Appellee. Before Chief Justice Anita Dupris, Justice Earl
L.McGeoghegan5, and Justice Theresa M. Pouley.
Dupris, CJ
PROCEDURAL SUMMARY
At a pre-trial hearing on January 3, 2011, the trial judge told Appellant that any more
motions to continue the jury trial set in this matter would be considered by the Court to be a
waiver of Appellant’s right to a jury trial. It is clear from the record that Appellant has not
explicitly waived his right to a jury trial. On January 13, 2011 the judge ruled he waived his
right to a jury trial by requesting another continuance of the jury trial set on that day. The judge
further found that it was in the best interests of judicial economy to set the matter for a judge
trial. Appellant filed a timely appeal on the issue of denying him a jury trial. For reasons below
we reverse and remand.
ISSUE
Did the Trial Court err in denying Appellant a right to a jury trial because of judicial
economy, based on the Judge’s instruction at pre-trial that any further motions to continue
would be considered a waiver of a right to a jury trial?
STANDARD OF REVIEW
The issue before this Court is a question of law which we review de novo. Colville
Confederated Tribes vs. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
5 Justice McGeoghegan passed away on December 22, 2011. He participated in the
decision-making and was intending to draft this opinion.
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DISCUSSION
The record shows that there have been several continuances granted for the jury trial set
in this case, extending the time from arraignment in 2009 to the present. On the day of the latest
jury trial set, January 13, 2011, Appellant’s spokesman informed the Court that his client was
unable to get out of Inchelium, Washington in time for the trial because of the snowy
conditions where he lived. He asked for a two-hour continuance in order to allow him time to
appear.
The Judge denied the request for a two-hour continuance and had the trial reset on the
calendar for a judge trial. The Judge ruled that Appellant waived his right to a jury trial because
he had been instructed at the pre-trial hearing on January 3, 2011 that any further requests for
continuances would result in the matter being set for a judge trial and not a jury trial. The Judge
reasoned Appellant was aware of this condition. He reasoned further that it was in the best
interests of justice to set the judge trial instead of a jury trial under the circumstances of the
case.
We recognize that undue delays and multiple continuances of a jury trial can impact a
court’s calendar and attendant expenses. We do not agree, however, that such considerations
outweigh a person’s substantive right to a jury trial. It is settled law in this jurisdiction that any
waiver of a jury trial must be voluntary, knowingly made, and specific. See, eg., Thomas v. CCT,
1 CCAR 135 (1990); Laramie v. CCT, 3 CCAR 1, 22 1LR 6072 (1995).
Our laws guarantee a right to a trial by a jury. CTC, sections 1-5-2(j) and 2-1-173. A right
to a jury trial is considered a fundamental right which cannot be dispensed with by a judge as a
punishment for asking for continuances. See Laramie v. CCT, supra.
We urge our visiting judges to familiarize themselves with our caselaw in order to
answer the legal questions in their cases appropriately. There is nothing in the record to
indicate an exception to our law which guarantees a jury trial absent a voluntary, knowing and
specific waiver of the right. It is the trial judge’s responsibility to know the law and to manage
the case accordingly.
For the reasons stated above we REVERSE and REMAND for a jury trial. It is so
Ordered.
Shawn Lawrence DESAUTEL, Appellant,
vs.
Anita B. DUPRIS, et al., Appellee.
Case No. AP10-012, 6 CTCR 3
11 CCAR 06
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[Appellant represented himself pro se.
Trial Court case number CV-OC-2008-28266.]
Decided January 21, 2011.
Bass, J.
This matter came before the Court of Appeals pursuant to a Notice of Appeal filed by
Appellant on November 15, 2010. Appellant is appealing a final order entered by the Trial
Court on the 28th day of October, 2010 which dismissed his case. Appellant is alleging
misconduct of the Chief Judge of the Trial Court; irregularity in the proceedings; that the
verdict or decision is contrary to law and the evidence; and that substantial justice has not been
done. The Court of Appeals reviewed the record and dismisses this appeal based on res
judicata6.
ISSUE
Whether the Trial Court can sua sponte dismiss an action and reject any future filings
when the Court is on Notice the action is barred by res judicata.
FACTS
Appellant’s application for enrollment filed shortly after his birth was denied on
insufficient blood quantum being shown to meet the requirements established by the Colville
Confederated Tribes (Tribes) for membership. Over thirty years later new evidence came to
light. Appellant reapplied and he was adopted pursuant to the procedure set forth in the Law
and Order Code § 8-1-80. Appellant is now a full member of the Tribes. Subsequently,
Appellant filed an action based on “new evidence” that alleges he should have been enrolled
when his parent first applied following his birth and thus was entitled to a sizable retroactive
payment of per-capita and 181-D monies from the Tribes. He lost at both the Trial Court and
Court of Appeals. Nevertheless, he re-filed citing the same new evidence, requesting attorney
fees, and alleging that the courts misapplied the law. Again, he lost at both the trial and
appellate courts. He filed his action one more time with the Trial Court alleging misconduct,
and that he was suing the individuals personally and not as Tribal officials. . The Court denied
6 Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights
of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same
claim, demand or cause of action. Blacks Law Dictionary, 6th Ed., 1990.
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his case and notified him no subsequent filings. would be accepted on this issue. He appeals
again.
DISCUSSION
A.INTRODUCTION
In court, “no less than in ordinary life, ‘explanations come to an end somewhere.’”7.
Generally in courts “somewhere” follows a single explanation: the final judgement.8 The issue
presented concerns the Trial Court’s power to dismiss the action sua sponte pursuant to the res
judicata doctrine that a final judgment has already been entered, and the litigation is at end.
This is one of the Court’s inherent powers.
B. STANDARD OF REVIEW
Whether a judge properly exercised an inherent power is reviewed for abuse of
discretion.9 The Trial Court's decision is overturned “only if its action was manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.”10 It requires a
review for due process at the very least.11
C. THE INHERENT POWERS OF THE COURT
7 Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2008) (quoting LUDWIG WITTGENSTEIN,
PHILOSOPHICAL INVESTIGATIONS § 1 (G.E.M. Anscombe trans., 1968)).
8 See CTC § 2-2-140 (“judgment shall consist of an order of the Court awarding money
damages to be paid to the injured person . . . ”); Waters v. CCT [Waters II], 1 CCAR 22,
26, 1985.NACC.0000003, ¶ 15 (1985) (“decisions of the Colville Court of Appeal are final
for that case. In other words, a party cannot appeal decisions from the Court of
Appeals.”)
9 O’Flynn v. Fulfer, 10 CCAR 21, 23 (2009) (contempt power); Seymour v CCT, 3 CCAR 11,
16, 1995. NACC.0000001, ¶ 34 (1995) (“The Business Council has provided the Court
with broad discretion, in the absence of statutory direction, to ‘adopt a process or mode
of proceeding’ . . . we will not disturb the process or mode of proceeding adopted by
the Tribal Court . . . unless clear abuse of discretion is shown.”).
10 O’Flynn, 10 CCAR at 23; see also Waters v. CCT [Waters I], 1 CCAR 18, 23, 1985.
NACC.0000001, ¶ 25 (1985) (defining abuse of discretion).
11 O’Flynn, 10 CCAR at 23 (citing Sonnenberg v. Colville Tribal Ct., 5 CCAR 9, 14, 1999.
NACC.0000003, ¶ 21 (1999)).
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Colville Courts, like all courts, possess inherent powers.12 Other jurisdictions have
described these powers as being one of two kinds, equitable and supervisory, and existing
independent of any statutory authority.13 Regardless, the Colville Code codifies this power in
Section 1-1-144.14 This statute has been described as a broad grant of “broad authority”15
providing guidance in the exercise of the “court’s discretionary authority to run an orderly
12 Zacherle
v. CCT, 8 CCAR 70, 73 (2006) (quoting Reservation Service v. Albert, No.
SC-CV-05-94 (Navajo 03/16/1995)) (“Courts have both the inherent and statutory
power to define the procedures to be used by judges, practitioners and the public to
implement judicial jurisdiction.”); see also O’Flynn, 10 CCAR at 23 (noting contempt
power arises from the Court’s inherent powers); Lezard v. CCT, 3 CCAR 4, 6
1995.NACC.0000010, ¶ 20 (same); In re Spencer, 137 B.R. 506, 511 (B.C., N.D.Okla. 1992)
(“All courts possess inherent power to protect their jurisdiction and process from
abuse.”)
See Peat, Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App. 3d 272, 288 (Cal. Ct.
App. 1988) (citing Bauguess v. Paine, 586 P.2d 942, [635–6] (Cal. Sup. Ct. 1978)). The
Bankruptcy Court provides an eloquent description of the nature of a court’s inherent
powers:
Such powers need not be specified in each and every statutory section or
subsection under which judicial proceedings may occur — indeed, it has
been said that legislatures cannot take away such general powers even if
they would attempt to. Whatever may be the case regarding courts at law,
certainly courts of equity are empowered (and, in the nature of their
jurisdiction, required) to see to it that their process is used in an equitable
manner.
13
In re Spencer, 137 B.R. at 511 (citations omitted).
14 This section provides in full:
Means to Carry Jurisdiction Into Effect. When jurisdiction is vested in the
Court, all the means necessary to carry into effect are also given and in the
exercise to this jurisdiction, if the course of proceeding is not specified in
this Code, any suitable process or mode of proceeding may be adopted
which appears most conformable to the spirit of Tribal Law.
15 Holt v. CCT, 3 CCAR 75, 82, 1997.NACC.0000005, ¶ 15 (1997) (“CTC 1.5.05 allows the
Tribal Court broad authority to adopt all means necessary to carry it’s jurisdiction into
effect, including any suitable process or mode of proceeding consistent with the Spirit
of Tribal Law.”).
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court system.”16 Its function is to allow the Court to develop a “process in the absence of a
statutory process.”17 The court, however, disfavors continued reliance on this statute,18 and
only uses it in the face of statutory silence.19
Colville case law provides further guidance for the Trial Court’s exercise of these
powers. The judge is directed to maintain justice and fairness and make decisions for the
“good of the whole community.”20 The community should be confident in the court’s ability
to accurately interpret the Court’s “procedures in order to preserve the integrity of the judicial
process and to prevent injustice.”21 When the issue implicates the Tribes’ “independence as a
16 George v. George, 1 CCAR 52, 63, 1991.NACC.0000004, ¶ 50 (1991) (discussing the
“custom and practice developed over the years in the Tribal Court of tape recording
hearing”) Waters IV v. CCT, 4 CCAR 65, 67, 1998.NACC.0000006, ¶ 20 (1998) (CTC §
1-1-144 “provides guidance to the Court in exercising its jurisdiction”); Brown v. CCT, 4
CCAR 28, 30, 1997.NACC.0000001, ¶ 31 (1997) (same).
17 Carden v. Colville Hous. Auth., 7 CCAR 22, 24 (2003); see also Colville Enter. Corp. v.
Admin. Law Ct., 8 CCAR 11, 15 (2005) (stating section 1-1-144’s purpose is to aid in the
proper operation of the courts when they have developed faster than the enactment of
applicable statutes).
18 Stensgar v. CCT [Stensgar I], 2 CCAR 20, 23, 1993.NACC.0000005, ¶ 31 (1993); Stensgar
v. CCT [Stensgar II], 4 CCAR 45, 47, 1998.NACC.0000010, ¶ 26 (1998).
19 Carden, 7 CCAR at 24 (“CTC § 1-1-144 . . . allows the judge to develop a process in the
absence of a statutory process for matters that come before the Court.”); Pakootas v.
CCT, 4 CCAR 1, 2; 1997.NACC.0000007, ¶ 21 (1997) (“this Court finds its Tribal Code
and Tribal statutory laws are silent on this matter. Therefore, this Court must rely on
CCT [§ 1-1-144]”); but see Zacherle, 8 CCAR at 73 (2006) (holding the Court had the
power to interpret a statute more specifically than provided in a general definitions
section).
20 CCT v. LaCourse, 1 CCAR 2, 5, 1982.NACC.0000001. ¶ 27 (1982) (“Judges have the
solemn duty and power to ensure fairness and promote justice in all proceedings before
them.”); Sonnenberg, 5 CCAR at 13, 1999.NACC.0000003, ¶ 36 (“The judge is a tribal
leader, who must make day-to-day decisions for the good of the whole community,
while at the same time maintaining the integrity of the case for those individuals before
him.”).
21 Stensgar II, 4 CCAR at 48, 1998.NACC.0000010, ¶ 30 (“a mandate once issued by our
Court will not be recalled except for good cause shown, an appellate court has power to
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sovereign nation” the Court’s duty is to protect tribal rights.22 Moreover, the Trial Court is to
be diligent in its respect for due process.23
In the present case there is no statute governing sua sponte dismissals of an action.
Nevertheless, Section 1-1-144’s grant of “broad authority” enabling the court to run an effective
court system, certainly covers the present issue.24 In particular, such a mode of proceeding
“preserve[s] the integrity of the judicial process and to prevent injustice.”25 The judicial
system’s integrity and ability to ensure just results is negated when a litigant can continually
re-file a matter in the hopes of a different result, or in the hopes of wearing the other side down.
These are the very reasons, as discussed below, for the existence of the res judicata doctrine.
D. A COURT MAINTAINS DISCRETION TO SUA SPONTE DISMISS AN ACTION WHEN
THE COURT IS AWARE RES JUDICATA BARS RELITIGATION OF THE ACTION.
1. Res Judicata
Colville courts have long recognized res judicata.26 It requires: (1) a past final
judgment on the merits between the same parties; and (2) a “present actions involv[ing] (a) the
set aside at any time a mandate that was procured by fraud, or to act to prevent an
injustice, or to preserve the integrity of the judicial process.”); see also Sonnenberg, 5
CCAR at 13, 1999.NACC.0000003, ¶ 39 (“It is incumbent upon the tribal judges and
justices to sustain the attitude of trust and respect in their leadership role in the Indian
community in order to maintain the community's confidence in the court system.”).
22 Pakootas, 4 CCAR at 2, 1997.NACC.0000007, ¶ 21.
23 Socula v. CCT, 10 CCAR 33, 39 (2010) (“the Trial Court must be ever vigilant in
protecting the rights of litigants before it, and proceed objectively and fairly in every
case, no matter how minor”) (finding a due process violation when the Trial Court’s
decision denying a new hearing was based on personal knowledge depriving the
defendant of proper notice).
24 See Holt, 3 CCAR at 82, 1997.NACC.0000005, ¶ 15 (finding grant of broad authority).
25 See Stensgar II, 4 CCAR at 48, 1998.NACC.0000010, ¶ 30; Sonnenberg, 5 CCAR at 13,
1999.NACC.0000003, ¶ 39 (“It is incumbent upon the tribal judges and justices to sustain
the attitude of trust and respect in their leadership role in the Indian community in
order to maintain the community's confidence in the court system.”).
26 See, e.g., CBC v. George, 1 CCAR 15, 20, 1984.NACC.0000002, ¶ 28 (1984) (discussing
res judicata); In Re L.S., 3 CCAR 72(2), 80–81, 1997.NACC.0000008, ¶ 16 (1997) (finding
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same subject matter; (b) the same cause of action; (c) the same persons and parties; and (d) the
same quality of the persons for or against whom the claim is made.27
The policy behind res judicata is the “prompt and efficient administration of the
business that comes before” a court.28 Fundamentally, the doctrine rests on the principle “that
one litigant cannot unduly consume the time of the court at the expense of other litigants, and
that, once the court has finally decided an issue, a litigant cannot demand that it be decided
again.”29 This reflects “the purpose for which civil courts have been established, the
conclusive resolution of disputes within their jurisdictions.”30 Preclusion then “protects
[litigation] adversaries from the expense and vexation attending multiple lawsuits, conserves
judicial resources, and fosters reliance on judicial action by minimizing the possibility of
inconsistent decisions.”31
The present facts indicate res judicata bars the Appellant's current action. The former
and present actions involve the same subject matter (retro-active payment related to
enrollment), the same cause of action (new evidence rated to enrollment), the same parties
leading to the same quality of people for or against, and there has been a decision on the merits.
Therefore the five criteria for application of the doctrine of res judicata have been met in this
case.
Significantly, the present facts act to highlight the policies behind res judicata. In
particular, the Appellant's repeated attempts to litigate the same issue appears be a single
trial court decision regarding termination of parental rights could not be used as res
judicata); CCT v. Swan, 7 CCAR 37, 39, 2003.NACC.0000012, ¶ 28 (2003) (finding
dismissal with prejudice has “full res judicata . . . effect”).
27 Colville Tribal Credit v. Antone, 10 CCAR 3, 7 (2009) (quoting Hisle v. Todd Pac.
Shipyards Corp., 113 Wn. App. 401, 410 (2002)).
28 United States v. Sioux Nation, 448 U.S. 371, 432–33 (1980) (Rehnquist, J., dissenting)
(citing Warthen v. United States, 157 Ct. Cl. 798, 800 (1962)).
29 Id.
30 Montana v. United States, 440 U.S. 147, 153–54 (1979) (citations omitted).
31 Id.; see also Peabody Western Coal Co. v. Navajo Nation Labor Commission, No.
SC-CV-14-03, ¶¶ 30–31 (Nav. Sup. Ct. -----) (listing the efficiency in administration;
conservation of resources; prevention of inconsistency; preservation of final judgments;
and promotion of fairness as the underlying policies).
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person “unduly consum[ing] the time of the court at the expense of other litigants.”32 Reliance
on the Court’s judgments is also weakened as the Appellant is advocating for inconsistent
decisions.33
2. Sua Sponte Dismissal Because of Res Judicata
Dismissal is within the inherent power of a court.34 The Colville Court of Appeals has
never considered the issue of the sua sponte dismissal specific to res judicata but has addressed
sua sponte dismissal multiple time in other contexts.35 The leading case, Campbell v. CCT, states
the rule that the Trial Court maintains “judicial discretion to grant dismissals with prejudice
before an adjudication of the merits in certain circumstances.”36 The Campbell case, supra, read
Stensgar 37 together with Swan 38 as providing “the general rule is that dismissals with prejudice
are generally reserved for cases in which . . . there has been a hearing on the merits.”39
Moreover, when lacking guidance the Court should reasonably “all relevant public and private
32 See Sioux Nation, 448 U.S. at 432–33 (Rehnquist, J., dissenting).
33 See Montana, 440 U.S. at 153–54.
34 See Chambers v. Nasco, Inc., 501 U.S. 32, 44–45 (1991) (citing Roadway Express, Inc. v.
Piper, 447 U. S. 742, 765 (1980)) (“A primary aspect of that discretion is the ability to
fashion an appropriate sanction for conduct which abuses the judicial process. . . .
[O]utright dismissal of a lawsuit . . . is a particularly severe sanction, yet is within the
court's discretion.”).
35 Campbell v. CCT, 8 CCAR 28, 30 (2003) (sua sponte dismissal without prejudice)
(collecting cases); CCT v. Swan, 7 CCAR 38, 2003.NACC.0000012 (2003) (sua sponte
dismissal with prejudice without adjudication on the merits); CCT v. Jack, 7 CCAR 33,
2003.NACC.0000010 (2003) (sua sponte dismissal with prejudice within power if
jeopardy attached or because of parties bad faith); Stensgar I v. CCT, 2 CCAR 20,
1993.NACC.0000005 (1993) (dismissal with prejudice because sentencing took place
more than sixty days after guilty finding).
36 Campbell v. CCT, 8 CCAR 28, 32 (2003).
37 See supra note 29.
38 See supra note 29.
39 Campbell, 8 CCAR at 30.
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interest.”40 Dismissal sua sponte for res judicata logically follows from this rule: res judicata is
solely concerned with a previous judgement on the merits.
Looking outside this jurisdiction other courts have come to the same conclusion. The
United States Supreme Court stated the rule as: “if a court is on notice that it has previously
decided the issue presented, the court may dismiss the action sua sponte, even though the
defense has not been raised.”41 This is “consistent with the policies underlying res judicata: . .
. the defendant’s interest in avoiding the burdens of twice defending a suit,” and, “the
avoidance of unnecessary judicial waste.”42 A dismissal on these grounds is disfavored when
“no judicial resources have been spent on the resolution of a question . . . thereby eroding the
system of party presentation so basic to our system of adjudication.”43
In the present case the Court was on notice that the same parties and claims had been
decided on the merits in prior actions were being raised again. Looking to the relevant private
and public interests the Trial Court was correct in dismissing the case and rejecting any
additional filings on the matter. The Court’s actions protects the defendant’s interest in not
continually defending the same suit. Moreover, not expending judicial resources in hearing
actions already decided and precluding further litigation prevents the wast of additional
resources.
CONCLUSION
40 Campbell, 8 CCAR at 30 (quoting United States v. Taylor, 487 U.S. 326, 336 (1988)).
41 Arizona, 530 U.S. at 412 (internal quotations omitted) (quoting United States v. Sioux
Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J., dissenting)); see also Ray v. Kertes, 285 F.3d
287, 293 n.5 (3rd Cir. 2002) (noting a court’s “inherent power to dismiss sua sponte a
complaint which facially violates a bar to suit”); Stearn v. Dept. of Navy, 280 F.3d 1376,
1380–81 (Fed. Cir. 2002); Hicks v. Holland, 235 F.2d 183, ___ (6th Cir. 1956) (finding lower
court “properly dismissed the complaint” because the court records “show that a
complaint covering the same subject matter and parties had been dismissed”); Hedger
Transp. Corp. v. Ira S. Bushey & Sons, 186 F.2d 236, 237 (2nd Cir. 1951) (“Recognizing the
identity of issues and parties, the district judge dismissed the complaint on the ground
that the previous judgment of dismissal was res judicata. We agree.”).
42 Arizona, 530 U.S. at 412.
43 Id. at 412–13; Stearn, 280 F.3d at 1380–81.
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Sua sponte dismissal of an action for the reason of res judicata is an inherent power of
the court which aids the Court in controlling its docket. Such Court action provides for the
good of the community by increasing reliance on judicial decisions by rejecting the invitation to
create inconsistent judgments. Such actions only aid in the prevention of injustice and
promotion of fairness. The case law governing such decisions are in line with the Trial Court’s
decision to dismiss and reject any subsequent filings. Res judicata is present and the Court
was aware of the prior decisions. The Trial Court’s action simply prevents the unneeded waste
of judicial resources and allows the Court to be used by other litigants, who have not received a
final judgment. We hold there has been no abuse of discretion by the Trial Court.
Therefore, the appeal is dismissed with prejudice. The Court of Appeals Clerk is
directed to reject any future filings by Appellant which relate to his enrollment.
It is SO ORDERED.
Connie DAVISSON, et al., Appellant,
vs
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP08-001, 6 CTCR 04
11 CCAR 13
[Tena M. Foster, Wayne Swaren, Leone Reinbold, Michael Larson, and Tim Liesenfelder for Appellants. Jonnie L.
Bray and Evelyn Van Brunt for Appellee.
Trial Court Case No. CR-2004-27344]
Argued February 29, 2009. Decided April 30, 2012.
En Banc before: Justice Earl L. McGeoghegan, Justice Howard E. Stewart, Justice Edythe
Chenois, Justice David C. Bonga, Justice Conrad Pascal, Justice Theresa M. Pouley, Justice Gary
F. Bass, and Justice Dennis L. Nelson.44
Nelson, J 45
44Justices McGeoghegan, Stewart, and Chenois have passed away and did not
participate in final deliberations for this decision. Justice Pascal also did not participate
in the final deliberations for this matter.
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Appeal to determine whether provisions of the Domestic Violence Code violate
provisions of ICRA and CTCRA by imposing enhanced sentencing and requiring the defendant
to prove self defense by a preponderance of the evidence. We affirm in part and reverse in part.
PROCEDURAL HISTORY
On June 3, 2004, the Business Council of the Confederated Tribes of the Colville
Reservation (hereinafter CBC) amended the Domestic Violence Code, CTC 5-5 et seq., to
enhance sentencing for crimes involving domestic violence. The CBC also added a provision
that, should self-defense be claimed, the defendant has the burden of proving self-defense by a
preponderance of the evidence, rather than the prosecution having to prove the absence of
self-defense by proof beyond a reasonable doubt.
The appellants are numerous defendants charged with crimes involving domestic
violence who contend their rights were violated under the Indian Civil Rights Act, 25 USC
1302, (hereinafter ICRA) and the Colville Tribal Civil Rights Act, CTC 1-5 (hereinafter CTCRA)
by the enhanced sentencing requirements. Appellants also contend that requiring a defendant
to prove self-defense by a preponderance of the evidence for crimes involving domestic
violence violates ICRA and CTCRA in that the tribal prosecutor should have the burden to
prove a lack of self-defense beyond a reasonable doubt. They make these arguments on the
basis of the trial court’s interlocutory order denying defendant’s motion to accept proposed
jury instructions which supported their position.
Grounds for an interlocutory appeal may be found where “the issue presented involve a
controlling issue of law as to which there is substantial ground for difference of opinion and
that an intermediate appeal from the decision may materially advance the ultimate termination
of the outcome:” COACR 7-A(b). This appeal meets the criteria for review.
JURISDICTION
This court has personal and subject matter jurisdiction of these cases pursuant to the
Constitution of the Colville Confederated Tribes46 and the Colville Tribal Code47. Also see
45 Appointed Presiding Justice on December 12, 2011.
46 Amendment X - Judiciary - Article VIII Judiciary - Section 1.
There shall be
established by the Business Council of the Confederated Tribes of the Colville
Reservation, a separate branch of government consisting of the Colville Tribal Court of
Appeals, the Colville Tribal Court, and such additional courts as the Business Council
may determine appropriate. It shall be the duty of all courts established under this
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Colville Confederated Tribes v. Stockwest, CV86-624, 21 ILR 6075 (1984) and National Farmers Union
Ins. Co. v. Crow Tribe, 471 U.S. 845, 12 ILR 1035 (1985). The defendants are Native American and
the criminal acts alleged herein took place within the exterior boundaries of the Reservation.
STANDARD OF REVIEW
The material facts of these cases are not disputed for the purpose of this appeal. The
issues are entirely those of law. Accordingly, the standard of review is de novo. CCT v. Naff, 2
CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995), Wiley et al. v. CCT, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059
(1995).
STATEMENT OF RELEVANT FACTS
The cases before us are similar only in that they involved alleged crimes involving
domestic violence. They do, however, present identical issues of law for this court to determine.
In order to put the issues in perspective and for purposes of illustration, we set forth the facts
alleged in Davisson.
Connie Davisson was charged with willfully striking or otherwise inflicting bodily
injury by scratching her former boyfriend on his nose and cheek on October 25, 2004. (Battery)
CTC 3-1-4. She is also charged in a separate count of biting him on his chest at the same date
and time. (Battery) CTC 3-1-4. She is further charged with entering or remaining in a building
without permission with the purpose of committing the above referenced crimes. (Burglary)
CTC 3-1-41). And finally, she is charged with possessing a controlled substance. (Prohibited
Acts - Possession) CTC 3-1-180.
section to interpret and enforce the laws of the Confederated Tribes of the Colville
Reservation as adopted by the governing body of the Tribes. The Business Council shall
determine the scope of the jurisdiction of these courts and the qualifications of the
judges of these courts by statute.
47 Colville Tribal Code 1-1-70 Jurisdiction defined. The jurisdiction of the Tribal Court
and the effective area of this code shall include all territory withing the Reservation
boundaries, and the lands outside the boundaries of the Reservation held in trust by the
United States for Tribal members of the Tribes, and it shall be over all persons therein,
provided, however, that criminal jurisdiction of the Court shall not extend to
non-Indians.
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The first three counts are alleged crimes involving domestic violence. Domestic Violence
is defined as “... the occurrence of one or more of the following acts by a family or household
but does not include acts of self-defense or culturally appropriate discipline of a child.” CTC
5-5-3(d). These include acts “Attempting to cause or causing physical, mental, or emotional
harm to another family or household member” (CTC 5-5-3(1) and acts “Attempting to commit
or committing any criminal offense under Colville Tribal law against another family or
household member.” CTC 5-5-3(4). A household member includes “persons who are dating or
have dated.” CTC 5-5-3(g)(3). It is alleged that Connie Davisson assaulted her former boyfriend.
The complaint charging Ms. Davisson with these crimes noted on its face that the
battery and burglary counts were subject to enhanced penalties. The complaint labeled the
crimes as “Domestic Violence Battery” and “Domestic Violence Burglary.”
The prosecution of Ms. Davisson was without complication until the parties submitted
proposed jury instructions. The prosecution/appellee’s proposed jury instructions were
standard instructions for the crimes of battery and burglary. Additional instructions directed
the jurors to determine: 1) whether the defendant committed a crime beyond a reasonable
doubt involving domestic violence, and 2) whether, by a preponderance of the evidence, the
acts of committing the crime were made by another family or household member. Proposed
instructions were also included that provided for the defendant to prove such by a
preponderance of the evidence.
The defendant/appellants’s proposed jury instructions took a different track. Their
proposed instructions contend the amendments to the Domestic Violence Code resulted in the
establishment of the new crimes of Domestic Violence Battery and Domestic Violence
Burglary. They also included instructions requiring the prosecution to disprove self defense
beyond a reasonable doubt for all criminal offenses charged. The Trial Court rejected this view
and denied the motion to accept the proposed instructions.
The defendants/appellants filed this appeal.
ISSUES
1. Whether the Due Process and Equal Protection rights given criminal defendants
under ICRA and the Tribal Civil Rights Act are violated by the provisions of the Domestic
Violence Act that require those claiming self-defense to establish it by a preponderance of the
evidence;
2. Whether the Due Process and Equal Protection rights given criminal defendants
under ICRA and the Tribal Civil Rights Act are violated by the provisions of the Domestic
Violence Code that allows the prosecution to establish that a crime is a crime of domestic
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violence by a preponderance of the evidence rather than by evidence beyond a reasonable
doubt; and
3. Whether the provisions of the Domestic Violence Code that require those criminal
defendants claiming self-defense to establish it by a preponderance of the evidence violate the
rights given them under ICRA and the Tribal Civil Rights Act to not be compelled to testify
against themselves?
DUE PROCESS AND EQUAL PROTECTION
The Colville Confederated Tribes enacted the Civil Rights Act (CTCRA) of the
Confederated Tribes of the Colville Reservation which provides that the Tribes shall not
“(d)eny any person within its jurisdiction the equal protection of its laws or deprive any person
of liberty or property without due process of law.” CTC 5 - 2(h). This court has consistently
held the CTCRA requires that every defendant in a criminal proceeding is entitled to basic
rights including the protections of due process and equal protection of the law. This has always
required, at a minimum, proper notice to the defendant and an opportunity for a fair hearing
before an impartial decision maker. Lezard v. CCT, 3 CCAR 04, 2 CTCR 11, 22 ILR 6135 (1995),
Louie v. CCT, 2 CCAR 47, 2 CTCR 05, 21 ILR 6136 (1994), St. Peter v. CCT, 2 CCAR 02, 1 CTCR
75, 20 ILR 6108 (1993), Wiley v. CCT, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059 (1994). Colville tribal
law, with respect to due process and equal protection, rights of criminal defendants, has always
been protective as, if not more protective, than the federal Indian Civil Rights Act and thus any
rulings by this court necessarily meet any federal law and federal constitution requirements.
A review of the basic tenets of due process and equal protection of laws may be helpful
before examining the issues here.
Due Process of Law. There are two facets to due process of law: procedfural due process and
substantive due process.
Procedural due process of law. Procedural due process requires at a minimum notice and an
opportunity to be heard. Silver Firs Town Homes, Inc. v. Silver Lake Water Dist., 103 Wn.App. 411,
425, 12 P.3d 1022 (2000), review denied, 143 Wn.2d 1013 (2001). Nothing in the record before us
shows the appellants were denied procedural due process at trial.
Substantive due process of law. Substantive due process protects against arbitrary and
capricious government action even when the decision to take action is pursuant to
constitutionally adequate procedures. Halverson v. Skagit County , 42 F.3d 1257, 1261 (9th Cir.
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1994). The appellants claim that shifting the burdens of proof and persuasion from the
prosecution to the defendants for
crimes involving domestic violence violates their right to substantive due process.
When state action does not affect a fundamental right, the proper standard of review is
whether a rational basis exists for that action. John E. Nowak and Ronald D. Rotunda,
Constitutional Law § 11.4, at 370; § 14.4, at 601 (4th Ed. 1991); United States v. Glucksberg, 521
U.S. 702, 728. Under this test, the challenged law must be rationally related to a legitimate state
interest. Id.; Seeley v. State, 132 Wn.2d 776, 795, 940 P.2d 604 (1997); In re Pers. Restraint of Metcalf,
92 Wn. App. 165, 963 P.2d 911 (1998), cert. denied, 527 U.S. 1041 (1999). In determining whether
a rational relationship exists, a court may assume the existence of any necessary state of facts
which it can reasonably conceive in determining whether a rational relationship exists between
the challenged law and a legitimate state interest. Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637,
125 L. Ed. 2d 257 (1993); see Seeley, 132 Wn.2d at 795 ; Glucksberg, 521 U.S. 702. (Taken generally
from Amunrud v. Bd. of Appeals, 158 Wn. 2d. 208, 219 (2005)).
Rational basis review applies where there are no factors triggering more intensive
scrutiny. State v. Manussier, 129 Wn.2d 652, 673, 921 P.2d 473 (1996), cert. denied, 117 S. Ct. 1563,
137 L. Ed 2d 709 (1997). State v. Wallace, 553 86 Wn. App. 546, 937 P.2d 200 (1997).
Intermediate scrutiny is applied to a statute that creates a classification based on a
semi-suspect class, where an important right is involved. Heiskell, 129 Wn.2d at 123. An
example is where the right to liberty is implicated and the classification is based on poverty.
State v. Heiskell, 129 Wn.2d 113.
State interference with a fundamental right is subject to strict scrutiny. In re Parentage of
C.A.M.A., 154 Wn.2d 52, 57, 109 P.3d 405 (2005).
Strict scrutiny applies to a statute that creates an inherently suspect classification.
Inherently suspect classifications are those based on race, national origin, or alienage. Petersen
v. State, 100 Wn.2d 421, 444, 671 P.2d 230 (1983). None of the parties have identified an
inherently suspect classification in this matter, however, strict scrutiny is also applied where a
party is threatened with deprivation of a fundamental right.
The right to not be compelled to testify against oneself is a fundamental right. Thus we
review the due process challenge to the amendments to the Domestic Violence Code under the
strict scrutiny standard.
Equal Protection
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Equal protection of the law is denied when state officials enforce the law with an
"unequal hand or evil eye." Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886).
Mere selectivity in prosecution creates no constitutional problems; a defendant must show
deliberate or purposeful discrimination based on an unjustifiable standard such as race,
religion, or other arbitrary classification. United States v. Steele, 461 F.2d 1148 (9th Cir. 1972);
Yakima v. Johnson, 16 Wn. App. 143, 553 P.2d 1104 (1976).
For purposes of an equal protection analysis, if the legislature creates a classification
based on certain characteristics of an offender, we determine whether the appropriate standard
of review is strict scrutiny, intermediate scrutiny, or the rational basis test, depending on the
nature of the interest affected by the law and the characteristics of the legislatively created class.
State v. Shawn P., 122 Wn.2d 553, 560, 859 P.2d 1220 (1993).
Under the rational relationship test, the law is subjected to minimal scrutiny and will be
upheld "unless it rests on grounds wholly irrelevant to the achievement of a legitimate state
objective." State v. Smith , 117 Wn.2d 263, 277, 814 P.2d 652 (1991) (quoting State v. Phelan, 100
Wn.2d 508, 512 ). Under the strict scrutiny test, the law will be upheld only if it is shown to be
necessary to accomplish a compelling state interest in order to be upheld. Smith, 117 Wn.2d at
277 (citing State v. Schaaf , 109 Wn.2d 1, 17, 743 P.2d 240 (1987)); Phelan , 100 Wn.2d at 512.
Under the intermediate or heightened scrutiny test, the challenged law must be seen as
furthering a substantial interest of the State. Smith, 117 Wn.2d at 277 (citing Schaaf , 109 Wn.2d
at 17 ); Phelan , 100 Wn.2d at 512 ).
Success under any of the articulated tests requires that the appellants first establish a
challenged classification. State v. Osman. 126 Wn. App. 575 (2005). The appellants have
identified only one fundamental right in their Opening Brief and that is the right of a defendant
not to be compelled to testify against himself. See Pg. 9. In their Reply Brief, the appellants
augment that claim by contending a legal process is flawed which requires defendants in
crimes involving domestic violence to prove such by a preponderance of the evidence while
defendants claiming self defense in crimes NOT involving domestic violence are relieved of
that burden.
Again, the right to not be compelled to testify against oneself is a fundamental right. We
review the equal protection challenge to the amendments to the Domestic Violence Code under
the strict scrutiny standard.
DISCUSSION OF ISSUES
All three issues center around self-defense. We re-phrase the issues as follows:
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Can the CBC shift the burden of proving self defense from the prosecution to the
defendant without violating tribal and United States statutes guaranteeing the right to due
process and equal protection?
If so, can the CBC change the burden of persuasion in criminal cases involving domestic
violence from “beyond a reasonable doubt” when self defense is required to be proven by the
prosecution to “by a preponderance of the evidence” when the burden shifts to a defendant?
And, finally, whether shifting the burden of proving self defense to the defendant in
crimes involving domestic violence compels the defendant to testify against himself in violation
of tribal law?
1. Can the CBC shift the burden of proving self defense from the prosecution to the defendant
without violating tribal and United States statutes guaranteeing the right to due process and
equal protection?
Self defense is not specifically defined in either Colville tribal law or Colville common
law48, but it is the law that “self-defense justifies an act done in reasonable belief of immediate
danger and if an injury was done in justifiable self-defense he can never be punished
criminally.” Louie v. CCT, 2 CCAR 47, 2 CTCR 05, 21 ILR 6136 (1994). This interpretation was
sanctioned in the legislative history of the Domestic and Family Violence Code in the section
entitled “self defense provisions.” This court has applied the state and federal common law rule
that once the defendant has presented evidence of self-defense, the absence of self-defense must
be proven beyond a reasonable doubt by the prosecution. To be sure, the defendant must
present some evidence to raise the issue of self- defense under this analysis. Louie, supra. This
does not answer the question of whether the legislature can establish different rules on self
defense which more directly is the question in this case.
Most of the laws enacted by the CBC have been passed without a legislative history
attached. The CBC deemed amendments to the Domestic Violence Code of such importance
that it included a legislative history. The history sets forth the need for the legislation and the
intent of the CBC in dealing with the pervasive problem of domestic violence. The Code itself
identifies the seriousness of the threat of domestic violence to the Tribes, its families, and that it
affects the health, welfare, and political integrity of all Reservation residents. The section of the
history concerning shifting the burden of proof and burden of persuasion from the prosecution
to the defendant is set forth below in its entirety:
48 We decline to more specifically define self defense as it not necessary to our holding
in these consolidated cases.
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Legislative History:
Self-defense Provision:
In giving direction for the drafting of this chapter, the Colville Business Council
made the deliberate choice to favor prosecution of crimes involving domestic
violence. This choice was intended as a clear statement that this harmful
behavior is not to be condoned nor tolerated and rather, shall receive a strong
and certain response by the Tribes' law enforcement and justice system.
Consistent with its decision to favor prosecution, when considering claims of
self-defense, the CBC carefully examined existing Colville Tribal case law and
decided that a departure from prior precedent was warranted in cases involving
domestic violence. The self-defense provision in this chapter has been discussed
at great length within the Tribes' law enforcement and justice community as well
as with the community as a whole at the 2003 Juvenile Task Force Workshop in
Keller. With due deliberation and care, the CBC has decided to place the burden
of proving self-defense on the defendant accused of a crime involving domestic
violence. The fact that this may be contrary to other jurisdictions' allocation of
the burden has been weighed in the deliberations.
At the time this chapter was drafted, Colville case law placed the burden on the
Tribes (the prosecutor) to prove the absence of self-defense beyond a reasonable
doubt once the defendant introduced evidence in support of self-defense. Under
this chapter, the burden never shifts from defendant to prosecutor. In cases
where the defendant is accused of a crime involving domestic violence and
self-defense is claimed, the defendant has the burden of proving by a
preponderance of the evidence that he or she was acting in self-defense. To
protect against unjust results, the evidentiary threshold was lowered from
beyond a reasonable doubt to a preponderance of the evidence. It should be
noted that the underlying principle remains the same as always: "The law of
self-defense justifies an act done in the reasonable belief of immediate danger,
and if an injury was done by a defendant in justifiable self-defense, he can never
be punished criminally…". Louie v. Colville Confederated Tribes, 2 CCAR 47, 2
CTCR 05, 21 ILR 6136 (1994).
As in all cases, there are valid concerns that a defendant may be wrongly
accused. However, the rule of evidence in Tribal Court should allow all
defendants to present all relevant evidence available in support of self-defense.
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Evidence of past violence by the alleged victim would clearly be admissible to
support a claim of self-defense.
That a defendant may choose to testify in support of the claim of
self-defense does not amount to compelling the defendant to testify against
himself or herself. Such testimony is not testimony against the defendant, nor
would any testimony elicited in cross examination necessarily be.”
The legislative history sets forth compelling reasons for enhancing sentencing and
shifting the burden of proving self-defense from the prosecution to the defense for crimes
involving domestic violence. The amendments satisfy the strict scrutiny test.
There is no tribal case law that considers whether placing the burden of proof on a
defendant violates tribal or federal statutes. Accordingly, we look to other jurisdictions, state
and federal, for guidance. See CTC 1-2-11.
The State of Washington has considered whether shifting the burden of proof is
unconstitutional. One court stated:
“It is not a constitutional imperative that a state "must disprove beyond a
reasonable doubt every fact constituting any and all affirmative defenses related
to the culpability of an accused. Traditionally, due process has required that only
the most basic procedural safeguards be observed; more subtle balancing of
society's interests against those of the accused have been left to the legislative
branch. . . . Proof of the nonexistence of all affirmative defenses has never been
constitutionally required . . .Patterson v. New York, 432 U.S. 197, 210, 53 L. Ed. 2d
281, 97 S. Ct. 2319 (1977). The state legislatures may define crimes so as to place
the burden of proving a defense upon defendant. As noted in Patterson, “The
decisions are manifold that within limits of reason and fairness the burden of
proof may be lifted from the state in criminal prosecutions and cast on a
defendant. 432 U.S. at 203 n.9, quoting Morrison v. California, 291 U.S. 82, 88-89,
78 L. Ed. 664, 54 S. Ct. 281 (1934).” State v. McCulllum, 98 Wn.2d 484, 656 P.2d
1064 (1983).
Another Washington State Supreme Court case that reviewed whether it is
constitutionally permitted to shift the burden of proof and persuasion from the prosecution to
the defendant is State v. Carama, 113 Wn.2d 631, 781 P.2d 483 (1989). That court held a
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defendant’s right to due process was not violated when the legislature shifted the burden of
proof of the affirmative defense of consent in a case involving sexual assault from the
prosecution to him.
A leading federal case regarding shifting of the burdens of proof and persuasion is
Patterson v. New York, 433 U.S. 197, 201-202 (1997), That court noted that:
“(A)mong other things, it is normally ‘within the power of the State to
regulate procedures under which its laws are carried out, including the burden
of producing evidence and the burden of persuasion’ and its decision in this
regard is not subject to proscription under the Due Process Clause unless ‘it
offends some principle of justice so rooted in the traditions and conscience of our
people as to be ranked fundamental” Patterson at 201-20,2 quoting Speiser v.
Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958), et al..
We see no difference in the issues in Patterson, supra, and Carama. We find the reasoning
of both courts persuasive.
The amendments to the domestic violence act offend no principle of justice that are so
rooted in the traditions and conscience of our people as to fundamentally deny due process to a
defendant in a case involving domestic violence.
We hold the CBC has not violated tribal or federal statutes guaranteeing the right to due
process and equal protection by shifting the burden of proving self defense from the
prosecution to the defendant for crimes involving domestic violence.
2. Can the CBC change the burden of persuasion in criminal cases involving domestic violence
from “beyond a reasonable doubt” when self defense is required to be proven by the
prosecution to “by a preponderance of the evidence” when the burden shifts to a defendant?
Appellants contend that the sentencing enhancement provisions of the Domestic
Violence Code unlawfully subject them to sentences exceeding the maximum for Class B and
Class C offenses.49 They argue that this factor, if proved by a preponderance of the evidence,
49 LOC 5-5-54 b) If a person commits a crime involving domestic violence, the penalties
for the underlying crime shall be increased as provided in subsections (1), (2), and (3)
that follow.
(1) If the underlying crime is a Class C offense, the revised maximum fine and
sentence shall be that of the next higher Class and in no case shall the sentence be
less than forty-five (45) days;
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wrongfully increases the maximum penalty for the underlying charge. They contend it is
wrongful because due process of law requires that proof that the crime is one of domestic
violence must be beyond a reasonable doubt rather than a preponderance of the evidence for
those charged with Class B and C offenses. They further contend that the determination that
the crime is one involving domestic violence necessarily transforms the crime from either a
Class C offense to a Class B offense or a Class B offense to a Class A offense. Accordingly, the
determination that the crime is one of domestic violence is necessarily an element of the crime
and must be proved beyond a reasonable doubt. We agree.
The concept of sentencing enhancement and its ramifications was thoroughly discussed
in Apprendi v. New Jersey, 530 U.S. 464 (2000). After an extensive review of a history of judicial
sentencing, that court concluded:
“Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt. With that exception, we endorse the
statement of the rule set forth in the concurring opinions in that case: "[I]t is
unconstitutional for a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a criminal defendant is
exposed. It is equally clear that such facts must be established by proof beyond a
reasonable doubt." 526 U. S., at 252-253 (opinion of Stevens, J.); see also id., at 253
opinion of Scalia, J.).*fn16.” Apprendi at P. 466.
A determination by the jury that the crime is one of domestic violence transforms the
crime from either a Class C to a Class B offense or from a Class B to a Class A offense. It does
this by increasing the sentence beyond the maximum for the underlying offense. Therefore,
whether the crime is one of domestic violence now becomes an element of the offense should its
proof enhance the crime to a higher class. All elements of a crime must be proven beyond a
reasonable doubt. United States v. Gaudin, 515 U. S. 506, 510 (1995); see also Sullivan v.
Louisiana, 508 U. S. 275, 278 (1993). Due process of law requires that in instances of those
(2) If the underlying crime is a Class B offense, the revised maximum fine and
sentence shall be that of the next higher Class and in no case shall the sentence be
less than ninety (90) days; or
(3) If the underlying crime is a Class A offense, the sentence shall be no less than
one hundred and eighty (180) days.
Colville Court of Appeals Reporter
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11 CCAR ___
charged with Class B and Class C offenses involving domestic violence proof of such must be
beyond a reasonable doubt.
The foregoing applies only to defendants charged with Class B and Class C offenses
involving domestic violence. The amendments enhancing sentencing for the Domestic Violence
Code do not apply to Class A offenses because the maximum sentence is not increased
beyond that for other Class A offenses. Accordingly, the present standard of proof for
establishing self defense for the crime of domestic violence for Class A offenses remains by a
preponderance of the evidence to be proven by the defendant.
We hold that shifting the burden of persuasion to the defendant and the burden of
proof to a preponderance of the evidence for Class A criminal offenses involving domestic
violence does not violate either the CTCRA or the ICRA.
We also hold that the present scheme of shifting the burden of proof and persuasion to
the defendant for Class B and C offenses involving domestic violence does violate the
provisions of the CTCRA and ICRA. Accordingly, the prosecution must prove beyond a
reasonable doubt that self-defense does not exist for defendants charged with such crimes and
that the crime is one of domestic violence.
3. Whether shifting the burden of proving self defense to the defendant in crimes involving
domestic violence compels the defendant to testify against himself in violation of tribal law.
To claim self-defense is a choice made by the defendant. Should he claim self- defense in
a Class A offense involving domestic violence, he is obligated to prove it by a preponderance of
the evidence. He may prove self-defense through the testimony of witnesses or himself or both.
It is his decision whether to testify. He may incriminate himself should he choose to do so, but
it is his decision whether to testify. He cannot be compelled to testify, but by voluntarily
putting himself on the witness stand, he has made moot his right not to be compelled to testify
against himself. As was stated in a recent Washington State court: “The safeguards against
self-incrimination are for the benefit of those who do not wish to become witnesses in their own
behalf and not for those who do.” State v. Burke, 163 Wash.2d 204, 211 (2008).
The United States Supreme court preceded Burke when it stated that a defendant faces a
dilemma demanding a choice between “complete silence and presenting a defense” which has
“never been thought an invasion of the privilege against compelled self-incrimination.”
Williams v. Florida, 399 U.S.78, 84 (1970).
We hold that shifting the burden of proving self-defense to the defendant in Class A
offenses involving domestic violence does not compel the defendant to testify against himself.
By claiming self-defense he has the burden of proving it by a preponderance of the evidence.
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CONCLUSION
We affirm the Trial Court’s Order denying the appellants’ motion to accept proposed
jury instruction. We reverse the Trial Court’s order approving the appellee’s proposed jury
instructions to the extent that it accepts those instructions regarding the shifting of the burdens
of proof and persuasion from the prosecution to the defendants who claim self-defense for
Class B and C offenses involving domestic violence. We remand this matter to the Trial Court
to process these cases consistent with this Opinion.
Colville Court of Appeals Reporter
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11 CCAR ___
Kendra TONASKET, Appellant,
vs
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP12-006, 06 CTCR 05
11 CCAR 26
[Jonnie Bray, Office of Public Defender, for Appellant.
Melissa Simonsen, Office of Prosecuting Attorney, for Appellee.
Trial Court Case No. CR-2011-35054]
Decision entered June 26, 2012.
Before Chief Justice Anita Dupris
Dupris, CJ
Appellant, Kendra Tonasket, filed an Interlocutory Appeal on June 13, 2012,
alleging the Trial Court wrongfully granted a continuance of her Jury Trial from June
15, 2012 to June 27, 2012, which is six (6) days beyond the 60-day limit. The Appellee,
Colville Confederated Tribes (Tribes) did not file a response within the requisite time.
COACR 6-A.
Appellant alleges, as grounds for the Interlocutory Appeal, first that the Trial
Court has so far departed from the accepted and usual course of judicial proceedings as
to call for review by the Court of Appeals (CoA). COACR 7-A(c). Further, Appellant
alleges her civil rights are violated in that she is being held beyond sixty (60) days
without findings to support the extension. COCAR 7-A(d).
We granted an interlocutory appeal in which the Trial Court set a jury trial
beyond the speedy trial limits. Yallup v. CCT, 11 CCAR 1, 6 CTCR 1 (2011). Yallup is
distinguishable from this case, however. In Yallup we held that the Trial Court made a
series of procedural errors, whose cumulative effects were to deny the Appellant due
process.50 These procedural errors are not present in this case.
50.
The Trial Court granted the Tribes’ Motion to Continue when it 1) was not supported by an Affidavit;
2) was without adequate evidence that the motion was served on Appellant by having an Affidavit of
Service attached; 3) did not contain an acknowledgment that Appellant concurred with the motion; and 4)
a hearing on the motion was not held. Yallup, supra, at 4.
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The Trial Court had sufficient facts before it to make its decision on the question
for a continuance; the Appellee stated cause, which was accepted by the Court; the
Appellant had an opportunity to object and state her reasons to the Trial Court. There
does not appear to be any departure from the accepted and usual course of business to
support an interlocutory appeal under COACR 7-A(c).
In Yallup, supra, we did hold the Trial Court erred in setting the trial beyond the
requisite time required by the speedy trial date, and we found it violated the appellant’s
civil rights to do so. What is different here is Appellant was able to participate in the
decision-making portion of the hearing on the continuance. This Court has not been
shown why a seven (7) day extension would prejudice the appellant. As we recognized
in Yallup, each procedural error could be harmless error; it was the cumulative effect
which rendered the continuance in violation of Yallup’s civil rights. There is no
cumulative group of harmless errors herein. There is a trial judge managing a case
within the parameters of the judge’s discretion.
It appears from the record that Appellant was granted bail; she apparently just
didn’t post it or request for a reduction. CTC 2-1-1-2, Time of Trial, has four (4)
scenarios in which a time frame is set for trial after a defendant’s initial hearing. 2-1-130,
Bails and Bonds – Generally, allows a defendant to be admitted to bail on certain
conditions. CTC 2-1-133, Denial of Bail, Detention, provides for reasons a defendant
may not be allowed bail.
The Trial Court record does not clearly show under which provisions Appellant
is being held for bail, thereby defining Appellant’s speedy trial rights as 90 or 60 days.
This question is not ripe for our review.
For the reasons stated, there are no grounds stated to grant an Interlocutory
Appeal in this matter, and the request is DENIED and the matter REMANDED to the
Trial Court for further action in accordance with this Opinion.
It is so ORDERED.
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Marcos ROSAS/Kammie STANGER, Appellants,
vs.
CHILDREN & FAMILY SERVICES, MINORS, Appellees.
Case No. AP12-001, 6 CTCR 06
11 CCAR 28
[Dale Braunger, Office of Tribal Public Defender, for Marcos Rosas;
Esther Milner, for Kammie Stanger,
Curtis Slatina, Office of Prosecuting Attorney,for Children and Family Services;
Mykel Parker for the minor children.
Trial Court Case No. MI-2011-31017]
Hearing held 04-20-12. Decision 06-26-12.
Before Chief Justice Anita Dupris, Justice Dave Bonga, and Justice Dennis Nelson
Nelson, Associate Justice
This is an appeal from a default judgment arising from an adjudication hearing at which
the appellants did not appear at the scheduled time for the hearing. They were, however,
represented by spokespersons who were present. We vacate the default judgment and remand
for a new adjudication hearing.
PROCEDURAL HISTORY
Marcos Rosas and Kammie Stanger are the parents of two minor children, to wit: T.M.
and Z.R.. The children were taken into protective custody by Children and Family Services of
the Colville Confederated Tribes (hereinafter CFS) on December 2, 2011. On December 9, 2011,
the tribal court entered an Order from temporary custody hearing giving the care and custody
of the children to CFS.
An adjudicatory hearing was scheduled for February 5, 2012. The appellants informed
their respective spokespersons that they were on their way to the hearing, but may arrive late.
The appellants had not arrived at 9:00 a.m. when the hearing was scheduled to begin. Their
respective spokespersons were present. The court granted a ten minute recess and when the
appellants had not arrived by 9:25 a.m., the presenting officer moved the court to find them in
default and to grant the Petition for Minors in Need of Care. The court found the parents to be
in default and adjourned.
The appellants arrived for the adjudicatory hearing "within minutes" after the court had
adjourned. They notified the court of their presence, but were informed that the hearing had
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ended. Subsequently, and without a hearing, the trial court judge entered an Order from
Adjudicatory Hearing on March 14, 2012. It included a "Findings and Conclusions" and
adjudicated the children as minors in need of care. The Findings and Conclusions stated the
parents were in default and that their spokespersons objected to the entry of default on the
grounds that they were prepared to proceed in the absence of the parents. The trial court
found it in the best interests of the children to remain in the care and custody of CFS "based
on the record and applicable law".
The appellants moved to set aside the default on the grounds that entry of the default
under the circumstances "was not appropriate". The motion to set aside the default was
denied by the trial court on various grounds. E.g. The parents failed to show good cause to set
aside the default and the parents needed to personally appear.
The parents filed this as an interlocutory appeal. This is not an interlocutory matter
because an adjudication that a child is a minor in need of care is a final order for purposes of
appeal . CTC 5-2-261.
Accordingly, this matter shall be considered as an appeal from a final
order.
STANDARD OF REVIEW
We review findings of fact under the clearly erroneous standard and errors of law de
novo. Colville Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995); Wiley, et al
v. Colville Confederated Tribes, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059 (1995); Palmer v. Millard, et al,
3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996). The issues presented are issues of law and we will
review under the de novo standard.
ISSUES
1. Whether the trial court erred when it declared the parents in default when their
spokespersons were present and ready to proceed with the adjudicatory hearing.
2. Whether the adjudication of the children as minors in need of care was in error as it
was not based upon evidence at an adjudicatory hearing but upon filings and testimony given
at a hearing for temporary custody.
3. Whether the Findings and Conclusions were sufficient for the trial court judge to
declare by clear, cogent, and convincing evidence that the children were minors in need of care.
DISCUSSION
1. Whether the trial court erred when it entered a default judgment against the parents when
their spokespersons were present and ready to proceed.
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11 CCAR ___
On February 5, 2011, the parents did not appear at the time set for an adjudicatory
hearing. The trial court found the parents in default even though the spokespersons for the
parents were present and ready to proceed. The presenting officer moved for an order of
default because the parents were not physically present. He justified the motion by stating he
wanted to question the parents and their absence justified finding them in default.
The parents's spokesperson objected by stating that the parents have a right not to
testify should they choose, thus the grounds put forward by the presenting officer were
without merit. The spokespersons also objected on the grounds that the parents were
represented by spokespersons who were present and "stood in the shoes" of the parents; that
they were the agents for the parents; and that they were prepared to proceed on their behalf.
In other words, the parents were not required to be present for the hearing to proceed.
It is black letter law that an attorney speaks for his client in court in the client's presence
and in his absence. In a matter that considered whether an attorney actually made an
appearance for his client, a Washington State case noted that when an attorney makes a formal
appearance for a defendant, it is the defendant who appears, and not the attorney. State ex re.
Trickel v. Superior Court, 52 Wash. 13, 100 Pac. 155. This holds equally true for an attorney
present in court when his client is not.
On April 14, 2012, the trial court signed an Order from Adjudicatory Hearing which
was, in essence, a default judgment against the parents which found their two children to be
minors in need of care.
A default judgment is one of the most drastic actions a court may take. Widicus v.
Southwestern Elec. Coop., Inc. 26 Ill. App.2d 102, 167 N.E.2d 799 (1960).
They are not favored
in law and "it is the policy of the law that controversies be determined on the merits rather than
by default.".
Dloughy v. Dloughy, 55 Wn.2d 718, 721, 349 P.2d 1073 (1960).
The primary test
in determining whether a default should be entered is whether justice is being done. "Justice
will not be done if hurried defaults are allowed anymore than if continuing delays are
permitted. But justice might, at times, require a default or a delay. What is just and proper
must be determined by the facts of each case, not by a hard and fast rule." Widicus, supra at
109. Entry of default judgment granting custody of the parties’ minor child to Mr. Friedlander
was an error of law and an abuse of discretion. Clark v. Friedlander, 4 CCAR 55, 2 CTCR 47, 25
ILR 6154 (1998).
The trial court erred in declaring the parents in default for failing to appear when their
spokespersons were physically present and ready to proceed. The trial court also erred by
entering a default judgment (adjudication) without a hearing on the merits of the action. It is
just and proper in this matter that an adjudicatory hearing be held.
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11 CCAR ___
2. Whether the adjudication of the children as minors in need of care was in error as it was not
based upon evidence at an adjudicatory hearing but upon filings and testimony given at a
hearing for temporary custody.
When the Tribe files a Petition to Adjudicate Minors in Need of Care it is required to
show by clear, cogent, and convincing evidence at an adjudicatory hearing that the children are
minors in need of care. CTC 5-2-26151. Clear and convincing evidence is such that the
“proponent’s assertion is highly probable” and is such as to cause the court to be convinced
“without hesitation.” In Re the Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039 (998),
citing Hoffman v. CCT, 4 CCAR 04, 2 CTCR 37, 22 ILR 6127, 24 ILR 6163 (1997). This is
accomplished at hearing by introducing the testimony of witnesses and what physical evidence
may be available. The presenting officer may call the parents to testify, however, they have
the right not to be compelled to testify should they be concerned their testimony could
incriminate them. CTC 5-2-160(b).
A temporary custody hearing was held in this matter. The court heard the testimony of
the CFS case worker and that of the mother, Kammie Stanger. The father, Marcus Rosas, was
incarcerated and unable to attend.
The court concluded in its Findings of Fact that "there is
enough evidence and testimony provided by CFS to grant the agency's request for temporary
custody".
The trial court did not indicate whether the standard of proof used to arrive at its
conclusion was "a reasonable cause to believe" or by "clear, cogent, and convincing evidence".
The standard of proof for temporary custody determinations is "reasonable cause to believe"
that a minor is in need of care. CTC 5-2-250 (a)(b) or (c) We presume "reasonable cause to
believe" is the standard used at the temporary custody hearing.
The different standards of proof used for the temporary custody hearing and the
adjudicatory hearing are necessary because of the exigencies of the initial proceedings and the
significance ramifications of removing children from their parents. A hearing must be held for
each event at which testimony is provided and demonstrative evidence admitted.
51 5-2-261. Adjudicatory Hearing-Proof. The Juvenile Court shall hear testimony
concerning the circumstances which gave rise to the complaint. If the allegations of the
petition are sustained by proof that is clear, cogent, and convincing, the Juvenile Court
shall find the minor to be a minor-in-need-of-care and proceed to the dispositional
hearing. A finding that a minor is a minor-in-need-of-care constitutes a final order for
the purpose of appeal.
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11 CCAR ___
After each hearing the trial court judge should enter Findings of Fact and Conclusions
of Law. These are necessary for a reviewing court to determine, in the case of appeal, the facts
upon which the judge made his decision and whether he has abused his discretion or made an
error of law.
No adjudicatory hearing was held in this matter. The trial court judge in his Order of
Adjudication relied "on the record and applicable law" in determining "it is in both minor
children's interest that they remain in the care, custody, and control of the Colville Tribal
Children and Family Services".
By reviewing the Findings of Fact and Conclusions of Law in the Order of the
Adjudicatory Hearing we should be able to make a direct correlation between the allegations in
the Petition and the proof of said allegations at the Adjudicatory Hearing. Weber v. CFS, 8
CCAR 32, 4 CTCR 23, 32 ILR 6139 (2005). When intervention is sought, it is the Trial Court’s
duty to (1) make a complete record of why the intrusion is made, and (2) make a complete
record of why the disposition, that is, the solutions to the problems identified at the
Adjudicatory Hearing, are necessary, as supported by the record. Weber, supra.
Relying "on the record and applicable law" of a prior proceedings as Findings of Fact in
awarding "care, custody, and control" of the minor children without conducting an
adjudication hearing was error by the trial court judge.
3. Whether the Findings and Conclusions were sufficient for the trial court judge to declare by
clear, cogent, and convincing evidence that the children were minors in need of care.
The trial court judge adjudicated the children as Minors in Need of Care based "on the
record and the applicable law".
This statement does not inform the parties nor the reviewing
appellate court of the facts upon which he based his adjudication.
As noted, the standard of proof in a temporary custody hearing is "reasonable cause to
believe". The purpose of a temporary custody hearing is to determine whether there is a need
to temporarily continue custody of children who have been taken from a family because of the
inability or unwillingness of a parent to provide adequate care. A trial court judge cannot
apply this standard of proof to adjudicate a child as a minor in need of care.
We find the Findings and Conclusions entered for the Order from Adjudication Hearing
to be insufficient on their face. We further find that the trial court judged erred in applying a
lesser standard of proof in adjudicating the children as Minors in Need of Care.
CONCLUSION
Colville Court of Appeals Reporter
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THEREFORE IT IS ORDERED that the Trial Court default order adjudicating the minor
children as minors-in-need-of-care is VACATED and that an adjudicatory hearing be held to
hear evidence and testimony that allows the trial judge to make an informed decision
regarding whether the minor children should be declared minors-in-need-of-care.
Colville Court of Appeals Reporter
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11 CCAR ___
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Daniel LIGHTLEY, Appellee.
Case No. AP11-018, 6 CTCR 07, 39 ILR 6069
11 CCAR 33
[Melissa Simonsen, Office of Prosecuting Attorney, for Appellant.
Daryl Rodrigues, Office of Public Defender, for Appellee.
Trial Court Case No. CR-2009-32140]
Oral Argument heard April 20, 2012. Decided August 6, 2012.
Before: Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Dennis L. Nelson
Bass, J.
This matter comes before the Court of Appeals (COA)from a criminal case initially filed
in 2009. There were several continuances throughout the course of this case, almost all based on
Appellee’s request and/or situation. Subsequently Appellee moved the Trial Court for an
Order of Dismissal, which was granted. The Trial Court dismissed the case with prejudice.
Appellant timely filed an appeal requesting that the dismissal be amended to reflect that the
dismissal was without prejudice.
The COA is concerned counsel for the Appellee, Daryl Rodrigues, did not appear for the
initial hearing or the oral argument hearing. There was no notice or explanation by Mr.
Rodrigues why he did not appear. Once undertaken, representation of a party, especially in a
criminal case where criminal penalties are possible, requires at a minimum, appearances at
hearings in the case. To abandon a client at a critical stage of the proceedings cannot be
condoned. A show cause hearing has been set and notice given in a separate order.
ISSUES
1) Did the Trial Court err by finding the Appellee’s right to a speedy trial was violated?
2) Did the Trial Court err by dismissing the case with prejudice?
3) Did the Appellee make improper ex parte contact when he presented a proposed
Order to the Trial Court without having first obtained the Appellant’s written position on the
proposed Order?
4) Did the Trial Court err in denying the Appellant’s motion for a presentment hearing
on the proposed order?
Colville Court of Appeals Reporter
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11 CCAR ___
STANDARD OF REVIEW
The issue is a question of law which we review de novo. Colville Confederated Tribes v.
Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
DISCUSSION
1. DID THE TRIAL COURT ERR BY FINDING THE APPELLEE’S RIGHT TO A SPEEDY
TRIAL WAS VIOLATED?
The Appellee was arraigned on May 15, 2009 and plead not guilty. Pretrial and jury trial
dates were set. Continuances were requested and granted. Subsequently, Appellee was held in
custody until August 12, 2009, when he was taken to the hospital. About a week later, the
Tribes requested a medical furlough, which was opposed by the Appellee. However, the Trial
Court granted the medical furlough and instructed that the Appellee notify the Court when he
was “released from doctor & show proof to court.” Nothing was received from Appellee for
several weeks. On September 24, 2009, the Tribes moved to revoke the medical furlough. An
order granting the motion was entered 4 days later. The order also specified that the Appellee
was to be held pending the next hearing. Apparently Appellee was finally brought before the
Trial Court in March 2010 and was put back on the trial track. In May 2010, Appellee moved to
change his plea and vacate the trial. A plea offer had been accepted. There were then five (5)
continuances through August 2010. There were no entries until a status hearing was held in
June 2011 and a bench warrant issued. The warrant was returned that same day. A status
hearing was held October 31, 2011. Then November 4, 2011, a motion was entered for the
dismissal. The motion was granted November 14, 2011.
The Appellee has a right to a speedy trial. See Stoneroad-Wolf, 8 CCAR 84 and Marchand
v. Colville Confederated Tribes, 8 CCAR 18, 4 CTCR 19 (2005). In Coleman v. Colville Confederated
Tribes, 2 CCAR 1, 1 CTCR 74 (1993), this court ruled that there was no violation of the speedy
trial rule where the Appellee was incarcerated for more than 60 days because:”. . . this Panel
does not believe the 60 day rule is an inflexible rule. . .”, and after examining the circumstances
found no violation. In Stensgar v. Colville Confederated Tribes, 2 CCAR 20, 1 CTCR 76 (1993),
court adopted the following factors to examine whether the right to a speedy sentence had been
violated: The length of the delay; the reason for the delay; whether or not the Appellee asserted
his right; and prejudice to the Appellee's interests, including prevention of oppressive pretrial
incarceration, minimization of anxiety and concern of the accused, and limitation of the
possibility that the defense will be impaired.
Colville Court of Appeals Reporter
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11 CCAR ___
This court adopts the flexibility approach to violation of speedy trial rights, and will
examine the same factors in determining whether the speedy trial rights have been violated as
set forth in Stensgar, supra., for speedy sentencing rights, and adding another factor to consider,
to wit, the length of the incarceration of the Appellee. In this case there was a lengthy delay
between the date Appellee was arraigned on the charges, May 15, 2009, and the date of the
dismissal of the charges, November 14, 2011. The Appellee was incarcerated a total of 89 days
during the time period between May 15, 2009 and August 12, 2009. The original trial was
scheduled for July 9, 2009. That trial date was within the 60 day limit for defendants who are
incarcerated, as Appellee herein was.
The whole series of delays in this case started with a motion by Appellee to continue the
readiness for trial hearing, indicating that Appellee would sign a speedy trial waiver. The
motion stated that Appellee was serving time on an unrelated matter, as well as being held on
the charges in the present case. The Trial Court continued the matter on Appellee's motion.
Three facts should be considered as a result of this motion: absent the Appellee's motion,
Appellee would have had a trial within the 60 days required; Appellee was serving jail time on
an unrelated matter, not simply on the charges in this case; and Appellee and or his attorney
promised something they did not deliver on, that there would be a speedy trial waiver signed
by the Appellee.
The next continuance was in response to a motion by Appellee on August 12, 2009 for a
continuance due to the Appellee being in the hospital, and that continuance was granted on
August 12, 2009. A motion was then filed by Appellant, for a medical furlough on August
18, 2009, which the Trial Court also granted. The medical furlough order released Appellee
from custody until he obtained a release from a doctor and showed that proof to the court.
Appellee was released from the hospital at some point, but apparently never obtained a release
from a doctor and showed proof to the court. We do know that he appeared in court on March
15, 2010, as he signed an Order releasing him on his personal recognizance. He apparently
remained out of custody until he was arrested on a warrant on October 28, 2011.
A continuance was granted just before the trial date of May 20, 2010 when Appellee
moved to vacate the trial date and set the matter for entry of a plea pursuant to a plea offer
from Appellant. The matter was scheduled for entry of a plea on June 25, 2010. There was no
plea entered on June 28, 2010. The change of plea hearing was continued to August 20, 2010.
On August 18, 2010, Appellee's spokesperson requested a continuance of the change of
plea hearing because Appellee accepted a plea offer from Appellant, and indicated that the
Appellee had some sort of infectious disease. The public defender was to obtain medical
records in order to verify his client’s condition and when he would be able to come to court.
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An Order was entered denying the continuance until August 20. In the denial order, the Trial
Court ordered the public defender to file proof by August 20 that the public defender had
contact with the Appellee and obtained an updated address and phone number for the
Appellee. Failure to provide the proof would result in a bench warrant being entered.
Apparently the proof was filed because on August 20, 2010, the Trial Court entered an order
continuing the change of plea hearing, but failed to enter the new hearing date on that order.
On August 27, 2010, the Tribes filed a motion to set a new change of plea hearing date
and an Order was entered setting a date set for a change of plea for October 8, 2010.
Appellee did not come to court on October 8. 2010, and a plea was not entered. There
was no written order entered on October 8 either. The next action takes place on June 17, 2011.
The Trial Court entered a warrant for the arrest of the Appellee. Appellee was arrested on the
warrant on October 28, 2011. On November 4, 2011, Appellee filed a motion to dismiss for
failure to bring the Appellee to trial within the time set by law. The Trial Court dismissed the
charges on November 4, 2011.
Most of the continuances and delays are due to continuances granted on request by the
Appellee or his failure to appear in court when scheduled. Applying the flexible approach to
analyzing whether Appellee's speedy trial rights have been violated the factors are: 1) The
delay was lengthy, but was occasioned mostly by Appellee's motions for continuances or
medical condition, and the Appellee would have had his case tried within the 60 day speedy
trial period absent his motion for a continuances; 2) Appellee did not assert his right to a
speedy trial until more than two years had passed after arraignment and had twice said he was
going to enter into a plea deal which he never honored; 3) oppressive pretrial incarceration
certainly was not a factor, as he was released from incarceration on August 18, 2009, until the
court had to issue a warrant to get him back to court after his arrest on October 28, 2011; 4) if
there was any anxiety or concern on Appellee's part, it was only caused by his actions; and 5) it
was not alleged or proven that his defense would be impaired by the delay occasioned by
himself. After considering all of the factors, this COA finds that Appellee's speedy trial rights
were not violated.
2) DID THE TRIAL COURT ERR BY DISMISSING THE CASE WITH PREJUDICE?
Appellee moved for a dismissal with prejudice alleging that the Trial Court violated
Appellee’s speedy trial rights. “In Stensgar this Court considered the question of whether the
matter had to be dismissed with prejudice because the sentencing took place after sixty days
from the finding of guilt. This Court held that the time requirements were jurisdictional, and
that the following were factors for the Trial Court to consider in deciding if the dismissal
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should be with or without prejudice: that the length of delay was minimal; the cause for delay
was administrative and not intentional by the prosecutor; the Appellee delayed in asserting his
right to sixty days until after the delay happened; and there was no prejudice to the Appellee.
Stensgar clearly delineates some guidelines for the Trial Judge to follow in weighing his
discretion to grant a dismissal with or without prejudice. We reinforced this discretion in Jack.
In Jack the Trial Judge dismissed the charge with prejudice sua sponte. We acknowledged the
general rule that dismissals with prejudice are ‘normally reserved for situations in which
jeopardy has attached.’ We went on to state that dismissals with prejudice can also be granted
‘when the Judge finds a party has acted in bad faith, or filed a frivolous case, for example.’“
Campbell v. CCT, 8 CCAR 28, 4 CTCR 22, 32 ILR 6140 (07-22-05). In this instant case, there is no
basis for a dismissal with prejudice. The delay in going to trial was primarily due to Appellee’s
actions or inactions. The trial was originally scheduled within the proper time restraints.
Though Appellee did not properly execute a written waiver of the speedy trial, there was
sufficient indication that he orally executed the waiver. He delayed asserting his right through
several months and hearings. There was no prejudice to the Appellee. We hold that the Trial
Court did err in dismissing the charge with prejudice.
3) DID THE APPELLEE MAKE IMPROPER EX PARTE CONTACT WHEN HE PRESENTED A
PROPOSED ORDER TO THE TRIAL COURT WITHOUT HAVING FIRST OBTAINED THE
PROSECUTOR’S WRITTEN POSITION ON THE PROPOSED ORDER?
On November 4, 2011, counsel for the Appellee presented a proposed order to the Trial
Court for a dismissal with prejudice. On the presentment page, it was handwritten that counsel
for Appellant “Objects requests presentment or court to prepare its own order.” The Trial Court
entered the Order without a hearing, presumably knowing that opposing counsel objected to
the order and wished for a presentment hearing. The Order was entered on November 14, 2011.
On November 18, 2011, counsel for Appellant filed a Motion and Order for Presentment
Hearing. Counsel for Appellee objected, saying “The order was signed over plaintiffs request
for presentment and the case is dismissed. Trial Court has no jurisdiction to act and the Tribes’
remedy is appeal only. (Emphasis in order).The Trial Court, however, granted the motion and set
a presentment hearing for November 29, 2011. The hearing was held but there was no Order
entered by the Court. Apparently the judge let stand his order from Nov. 14.
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. DeConto, 10 CCAR 23, 5 CTCR 25, 36 ILR 6010
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(12-16-2009). Basic principles of due process include notice and the opportunity to be heard.
Finley v. CTSC, 9 CCAR 71, 5 CTCR 18, 36 ILR 6004 (11-21-2008).
Upon a review of the hearing on November 29, 2011, the judge admitted that he must
have somehow missed the notation about the objection to the order. However, he did not make
any decision as to the validity of the order entered. While we understand that having time to
adequately review proposed orders is sometimes limited, in this case we find that it was Trial
Court error to have entered an order when one of the parties was clearly objecting to the
contents of the proposed order. The Trial Court should have either set a presentment hearing to
allow the parties to argue their respective position or given a time limit for the opposing party
to submit its own proposed order. The Trial Court could then draft an order from the two
which most closely reflected the decision of the Court. We were not presented with any
evidence that showed that Appellee did anything more than file the proposed order. Since
allegations of ex parte communications are of a serious nature, we hold that Appellant did not
meet its burden to prove that there was ex parte communication between counsel and the
judge.
4) DID THE TRIAL COURT ERR IN DENYING THE PROSECUTOR’S MOTION FOR A
PRESENTMENT HEARING ON THE PROPOSED ORDER?
This issue is moot. The Tribes entered a written motion for a presentment hearing,
which was granted by the Trial Court and a hearing set. The hearing was held on November 29,
2011, although no order was issued from that hearing. “In order to minimize future confusion,
a judge should always follow up important decisions with a written order, ... The written order
should summarize the issues discussed and the decision rendered.” CCT v. Dogskin, 10 CCAR
45, 5 CTCR 31 (02-02-2011). A review of the hearing was not enlightening. The judge heard
from both parties about the proposed order, admitted that he may have overlooked the
objection, but then didn’t issue a decision about whether the order would be affirmed or not152.
This left the parties in limbo, so to speak. While we were not asked to rule on the absence of a
written order, we want to reiterate that any time that a motion is before the court and argued,
there should be a written order issued in order to preserve the issues for appeal. The written
order should at least briefly describe why the hearing was originated and what the court
decided.
521. In his brief, Appellee alleges that on the November 29, 2012 court date, the Trial Court concluded that the case
had already been dismissed and that as no motion for reconsideration had been filed the Court’s jurisdiction was
over. A review of the oral record does not reflect that conclusion. In fact, the judge made no findings nor issued a
decision.
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ORDER
Based on the foregoing, the Order Dismissing this case with prejudice by the Trial Court
is reversed, and the matter is remanded to the Trial Court for action consistent with this
decision.
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Terrance RANDALL & Samantha LaCOURSE, Appellants,
vs.
CHILDREN & FAMILY SERVICES, Appellee.
Case No. AP12-005, 6 CTCR 08, 39 ILR 6093
11 CCAR 39
[Daryl Rodrigues, Office of Public Defender, appeared for the father, Terrance Randall.
Tim Liesenfelder, appeared for the mother, Samantha LaCourse.
Curtis Slatina, Office of the Prosecuting Attorney, appeared for CCT/CFS.
Mykel Parker, spokesperson, appeared for the minor child, TR.
Trial Court Case No. MI-2012-32008]
Hearing held June 15, 2012. Decided December 13, 2012.
Before Chief Justice Anita Dupris, Justice Dave Bonga & Justice Dennis L. Nelson
Dupris, CJ
SUMMARY OF PROCEEDINGS
On April 12, 2012, CCT/CFS filed for temporary custody of TR, a minor child of
Randall and LaCourse, Appellants herein. The Temporary Custody Petition alleged the child
was in immediate danger of harm if she remained with Appellants. This allegation was based
on the father’s history of physical abuse of the mother, as well as the police acting on
information from a CCT caseworker that the parents were violating a no-contact order. The
Tribes also alleged TR should be taken into temporary custody because of another case in
which TR’s sibling, BR, was found to be a Minor-In-Need-of-Care (MINOC). The Tribes was
granted temporary custody.
On April 30, 2012 the Tribes filed a Petition for MINOC regarding TR. The allegations
are identical to the allegations in the Petition for Temporary Custody. The adjudicatory hearing
was held on May 21, 2012 at 2:00 p.m.. Neither parent was present at the beginning of the
hearing. The mother’s spokesman was present and stated on record he did not have contact
with his client, nor did he know where she was at the time. The spokesman for the father did
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not appear for the hearing. From the record it appears he was appointed to represent the father
only three (3) days before the hearing.
The Trial Judge proceeded with the hearing without the presence of the parents and
took testimony from a caseworker, who was not the investigating caseworker, regarding the
allegations in the Petition. The Trial Judge adjudicated TR to be a MINOC at the conclusion of
the caseworker’s testimony. At the conclusion of the Judge’s findings and order on record
finding the child to be a minor-in-need-of-care, both parents and Mr Rodrigues, the
spokesman for the father, appeared. Mr. Rodrigues alleges he was in other court proceedings
at the start of the adjudicatory hearing herein, and arrived at 2:15 p.m., at which time he was
told the hearing was over and the minor was declared a MINOC. The record does not indicate
that either parent nor Mr. Rodrigues addressed the Court, on the record, and asked for the
hearing to be reopened.
The parents, Appellants herein, filed an Interlocutory Appeal and a request for a Writ of
Mandamus on May 22, 2012. Thereafter, on May 29, 2012, the Trial Judge entered a written
order from the adjudicatory hearing.53 The written findings acknowledged that both parents
appeared after the Court made its ruling, even though such finding was not put on the record.
On June 15, 2012, at the Initial Hearing we found cause to grant the appeal and noted
that it is not an Interlocutory Appeal because the Trial Judge made a final decision on the issue
of MINOC. We also found cause to vacate the MINOC Order, and remand for a new hearing.54
We further found cause to dismiss the request for a Writ of Mandamus in that no party in
attendance knew why it had been filed nor could they present any argument for its
acceptance.
ISSUES
53 The order was presented by CFS’s spokesman, Curtis Slatina, Acting Lead Prosecutor. The Judge
signed the presented order even though it was not signed off by any of the three other spokesmen, Mr.
Liesenfelder, Mr. Rodrigues, and Mr. Parker. The Order was signed after the initiation of this Appeal.
54 It was noted on the record that Mr. Daryl Rodrigues, spokesman for Appellant Randall, failed to
appear for the hearing. He did not notify the Court, either before or after the hearing, of the reason for his
absence.
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1) Did the Trial Court err in not going back on the record to allow the parents an
opportunity to be heard when they appeared at the end of the hearing?
2) Did the Trial Court err in finding the minor child herein to be a
Minor-In-Need-Of-Care based on the evidence presented?
STANDARD OF REVIEW
The first issue necessitates a review of the judge’s actions in managing the case. We
review this issue under the abuse of discretion standard. Under this standard we presume the
trial judge’s decision to be correct unless it is shown that the decision was manifestly
unreasonable, or made on untenable grounds, or made for untenable reasons. Grunlose v. CCT,
5 CCAR 26, 3 CTCR 25, 27 ILR 6033 (1999); Marchand v. CCT, 8 CCAR 18, 4 CTCR 19, 32 ILR
6012 (2005).
The second issue goes directly to the trial judge’s review of the evidence (facts) and
application of the law to the facts. It is a mixed question of facts and law. The appropriate
standard of review for a mixed question may be determined by reference to the principles which underlie
the established rules of standard of review jurisprudence: when the concerns of judicial administration
favor the trial judge, his determination should be subject to clearly erroneous review, and when the
concerns of judicial administration favor the appellate court, the trial judge’s determination should be
subject to de novo review. CCT v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
We have set out standards and guidelines for the trial court to follow when assessing
facts in MINOC cases. As we will show in our opinion below, these standards and guidelines
are not always being followed in MINOC cases, including the instant case. This alone supports
a finding that the concerns of judicial administration favor the Court of Appeals. We review the
second issue de novo.
DISCUSSION
1.
Did the Trial Court err in not going back on the record to allow the parents an
opportunity to be heard when they appeared at the end of the hearing?
This is the second time we have been asked to review a judgment entered against
parents in a MINOC case where the parents arrived late for the proceedings and were not
allowed to present evidence. See, Rosas and Stanger v. Children and Family Services, 11 CCAR 28, 6
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CTCR 06 (2012)55. In Rosas the parents notified the Court, through their spokesmen, both who
were present, they were on their way but would be late. The Trial Court, after a short recess,
went back on record and granted the Tribes’ request for a default on the MINOC Petition. The
parents appeared just minutes after the Court adjourned. The Trial Judge refused to go back on
record, and entered an order finding the children to be Minors-In-Need-Of-Care. In Rosas the
Judge, who is the same judge in this case, did not even allow the spokesmen for the parents to
speak for their clients in the absence of their clients’ attendance.
In this case one spokesman did not have contact with his client before the hearing, and
the second spokesman had only been appointed three days before the hearing, and had not yet
met with his client. The Order From Adjudicatory Hearing (Order) dated May 29, 2012 notes
the Court put on record that neither parent was present, nor asked for a delay or continuance.
The Order further notes both the parents appeared at the end of the hearing. Neither of these
findings are supported by the oral record of the hearing. The oral record shows the Clerk of the
Court was asked if the mother, Appellant LaCourse, had notice, to which the Clerk replied “she
was aware of [the hearing].” No inquiry was made by the Court or any of the parties present if
the father, Appellant Randall, had notice of the hearing.
There is paucity of information on the record to indicate why the judge chose not to
allow the parents/Appellants to go on record when they appeared within minutes, i.e. less than
twenty (20) minutes from the time the hearing began. In Rosas, supra, the parents’ attorneys
were present but not allowed to represent their clients to avoid a default judgment. The Trial
Court, in Rosas found the minor to be a MINOC just based on the allegations in the Petition
without taking any evidence on the record.
In the instant case the Trial Court took evidence in the form of testimony from a
caseworker from the Tribes’ Children and Family Services (CFS). As we will discuss below, it
was not the best evidence. Appellant/LaCourse’s attorney was allowed to cross examine the
CFS witness, but did not have the assistance of his client at the time.
55The written Opinion and Order in Rosas was entered on June 19,2012, after the hearing in this case. In
Rosas, as in this case, we did inform the parties on record that we were reversing the Trial Court’s order
on the MINOC hearing.
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It appears, from the practice of the Trial Court to deny parents a right to present
their cases when they are even just a little late for the hearing, that MINOC hearings are being
treated like the adversarial proceedings in criminal cases. We have no findings either on the
oral record or from the written findings to support a reason why the Judge was not willing to
allow the parents/Appellants an opportunity to present evidence in the case. Although our
criminal court has become more westernized, the juvenile court has an opportunity to draw on
the traditions and customs of our tribes in fashioning decisions to strengthen our families and
communities.
Although a delay in a proceeding may be troublesome, here one must first put it in
context of the purpose of the juvenile code. The code must be interpreted liberally in order to
preserve and strengthen a child’s family ties as well as his cultural ties to the Tribes. See CTC
5-2-1, Purpose and Construction.56 An important purpose of the Juvenile Code is to prevent
the breakup of families by offering the assistance of the Tribes’ programs and resources to
families in trouble and in need of assistance. Id.
The record does not reflect any reason the Court could not have heard from the parents
and their spokesmen before entering its final adjudicatory order, especially based on the sparse
evidence presented herein. To treat the adjudicatory hearing as a pure adversarial hearing flies
in the face of the purposes of the juvenile laws.57 The parents have a due process right to
present evidence; each case must be assessed individually on whether their late attendance is so
56. It is the purpose of this Chapter to secure for each child coming before the Tribal Juvenile Court such
care, guidance, and control, preferably in his own home, as will serve his welfare and the best interests of
the Colville Confederated Tribes; to preserve and strengthen family ties whenever possible; to preserve
and strengthen the child’s cultural and ethnic identity whereever possible; to secure for any child
removed from his home that care, guidance, and control as nearly equivalent as that which he should
have been given by his parents to help him develop into a responsible, well-adjusted adult; to imporve
any conditions or home environment which may be contributing to his delinquency; and at the same time,
to protect the peace and security of the community and its individual residents from juvenile violence or
law-breaking. To this end, this Chapter shall be liberally construed.
57. The denial of participation in the hearing can also be considered acultural. It is settled tradition that
everyone who has an interest in a matter, and who wishes to have input is allowed to have his say.
Judges, as tribal leaders, must be ever-vigilant in promoting our traditions whenever the opportunity
arises in the court-context. In this way we can help preserve what makes tribal courts unique and
necessary for resolution of tribal issues.
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egregious as to forego this right. This is the only way to ensure a child is given the full benefit
of the law and of maintaining his ties to his family and culture.
In this case, the spokesman for the father, Mr. Rodrigues, had only been appointed three
days before the hearing, and was delayed because he had already been scheduled in another
court hearing at the time of the hearing herein. The Court failed to consider this on the record,
thereby denying Appellant/father his due process right to present evidence on his own behalf.
Based on the foregoing we hold the Trial Court abused its discretion in that its decision
to deny the parents an opportunity to be heard when they appeared at the end of the hearing
was manifestly unreasonable under the circumstances of this case and the applicable law.
2) Did the Trial Court err in finding the minor child herein to be a Minor-In-Need-Of-Care
based on the evidence presented?
Based on the discussion below, we find the Court did err in finding the minor to be a
MINOC based on the evidence presented. The Petition for Minor-in-Need-of-Care (MINOC)
(hereafter Petition) is identical to the Temporary Custody Petition, alleging TR was a MINOC in
that he “has been subjected to or has the potential to be subjected to,58 injury, sexual abuse, or
negligent treatment or maltreatment by a person who is legally responsible for the minors’ [sic]
welfare under circumstances which indicated that the minors’ [sic] health, welfare and safety
are harmed thereby; [and he]...has not been, or cannot be provided with adequate food,
clothing, shelter, medical care, education or supervision by her parent, guardian or custodian
necessary for their [sic] health and well-being...”
The relevant facts asserted in the Petition to support the allegation of MINOC are as
follows:
1. TR was placed in protective custody on April 11, 2012. No reason was given in the
allegation for the reason for the protective custody.
2. Caseworker Buffy Nicholson saw the parents/Appellants traveling together in a car.
The police stopped them and arrested Appellant Randall for violating a no-contact
order with Appellant LaCourse, as well as for DWS. The facts do not allege when this
stop happened.
58. The language “or has the potential to be subjected to” is not in the legal definition of a MINOC under
CTC 5-2-30(l). As such, it cannot form a basis for a MINOC finding.
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3. Appellant Randall was previously charged in state court with Assault 4th
Degree-Domestic Violence, Appellant LaCourse being the victim. Again, the date of the
offense is not given; only that the assault occurred while LaCourse was pregnant with
TR.
4. Randall has also been charged with “Domestic Violence” in tribal court (date
unknown from a reading of the allegations) according to the alleged facts. Petitioner
alleges this shows a pattern of domestic violence by Randall against LaCourse.
5. Petitioner alleged LaCourse has made it clear she will remain with Randall.
6. Petitioner alleged CFS has “grave concern” for the child, and “is concerned that the
father may assault and injure the minor child.”
7. Finally, Petitioner alleged that TR’s older brother, BR, is an adjudged MINOC, the
Court having found that Randall physically abused BR and LaCourse failed to protect
BR from this abuse.
This is summation of the facts alleged, and are not the exact wording nor all of the allegations.
The purpose of an Adjudicatory Hearing is to hear evidence which shows by clear,
cogent and convincing evidence, that the minor is a MINOC. CTC 5-2-261. The Petition must
allege specifically what acts or omissions were committed by the parents or guardians to
support a finding the child is a MINOC. In Re the Welfare of A.T, and J.T., minors, Weber,
Appellant, 8 CCAR 32, 4 CTCR 23 (2005). The statutory definition of MINOC does not include
the “a potential to be subjected to” language included in the Petition; the Petitioner cannot
change what the law is without a statutory change. Therefore, the facts must show actual
injury, neglect, abuse, or maltreatment under the alleged section of CTC 5-2-30(l). Further, we
have held that there must be a direct correlation between the allegations in the Petition and the
proof given in the hearing. Id.
A review of the evidence presented to the Court show two (2) glaring problems. First,
the testimony of the caseworker, Gary Nicholson, was not the best evidence. It was based solely
on hearsay. Mr. Nicholson admitted that he was basing his testimony on what he was told to
say by Buffy Nicholson, the caseworker for the case. He admitted he did not do any
independent investigations. He did not know the age of the minor in question; he didn’t know
if any visitation had taken place; he did not have any personal knowledge of the case. At one
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point he stated “Buffy wanted to make sure I’d say it’s important the child is in a safe
environment....”
Mr. Nicholson’s testimony does not meet a clear, cogent and convincing standard of
proof. The best that it supports is that the caseworker, Buffy Nicholson, is concerned for what
potentially may happen to TR. We note that this is not a trivial concern, but it does not meet the
legal level of proof needed. Hearsay cannot be cross-examined, nor subject to a test of veracity.
The second evidentiary problem is how the Court took judicial notice of another
MINOC case involving the parents herein. In Louie v. CCT, 8 CCAR 49, 4 CTCR 27 (2006) we set
out the standards for the Court to follow when taking judicial notice in an evidentiary hearing.
In In Re Gorr, Marchand, Appellant, 8 CCAR 76, 4 CTCR 31 (2006) we held the judicial notice
standards also apply to juvenile court cases.
When the Trial Court is asked to take judicial notice in an Adjudicatory Hearing, the
following must be considered:
(1) taking judicial notice is disfavored, especially when the Court takes judicial notice of
facts that would prove or disprove an allegation of the MINOC petition;
(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 Judge 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. Id.
The Court did none of the above before taking judicial notice. Instead, he took as true
the findings of fact in the case involving TR’s brother, BR. See Order from Adjudicatory
Hearing, May 29, 2012, at page 2. The Court included very specific findings which are not on
the oral record for this case.59
The first concern in a dependency case should always be what is in the best interests of
the minor involved. In Re J.L.V., 8 CCAR 23, 4 CTCR 21, 32 ILR 6142 (2005). What is in the best
interests of the child would include the Court providing the best possible adjudication of the
59.
In the Order from Adjudicatory Hearing the Court found facts regarding physical abuse by Randall
towards BR and regarding the non-compliance of the parents in the BR case. It also had unsupported
findings regarding the notice given the parents (at page 1) as well as the late appearance of the parents,
and non-appearance of Randall’s spokesman, Mr. Rodrigues.
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merits of the case, free from procedural errors, so that the child and his family may embark on a
healing of the problems which brought them to the Court in the first place. This has not taken
place in this case. We find the Trial Court erred in finding the minor to be a
minor-in-need-of-care based on the evidence presented.
Based on the foregoing, we REVERSE and REMAND to the Trial Court for further
actions consistent with our rulings herein.
It is so ORDERED.
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COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Gary STENSGAR and Curtis SIGNOR, Appellees,
Case No. AP12-007/008, 6 CTCR 09
11 CCAR 47
[Appellant appeared through Curtis Slatina, Office of the Prosecuting Attorney.
Appellee appeared through Jeremy Stevens, Office of the Public Defender.
Trial Court Case Numbers: CR-2012-34299 and CR-12-34300]
Oral Arguments heard January 25, 2013. Decided February 25, 2013
Before: Chief Justice Anita Dupris, Justice David Bonga and Justice Dennis Nelson
Nelson, J.
Gary Stensgar and Christopher Signor were arrested on July 31 2011 for Driving While
Intoxicated. Both were taken to the tribal jail where each posted bail. Each signed a Notice of
Appearance and Promise to Appear informing them to appear for arraignment on August 2,
2011. Both appeared for arraignment only to learn that no complaint or citation had been filed
with the court. The trial court judge dismissed the charges against them with prejudice. We
overturn the Trial Court and hold the actions of the trial court judge to be void ab initio.
ISSUE
`Did the trial court abuse its discretion by dismissing the charges with prejudice when
neither a complaint nor a citation had been filed with the court?
STANDARD OF REVIEW
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The Tribes allege the trial court abused its discretion and made errors of law. Mixed
questions of abuse of discretion and errors of law are reviewed de novo. Colville Confederated
Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 IlR 6059 (1995).
FACTS
The facts in this matter are not at issue. Gary Stensgar and Christopher Signor
(hereinafter defendants) were arrested in separate incidents on July 31, 2011, for Driving While
intoxicated. LOC 3-1-1 (RCW 45.61.502, 5040). Both were taken to the tribal jail and released
upon posting bail. At the time of their release each signed a Notice of Appearance and
Promise to Appear for arraignment on August 2, 2011.
Upon appearing at the appointed time and date, they learned that criminal charges had
not been filed against them. The time and date set for their arraignment was the time and date
regularly set for arraignments60. Both the tribal prosecutor and the tribal public defender were
present during these arraignments and both spoke for their respective potential clients.
Despite not having a charging document in the record, the public defender moved to dismiss
the charges against his clients. The Tribes objected. The court, finding that similar events had
occurred in the past, dismissed the charges with prejudice.
The Tribes filed a Motion for Reconsideration which was heard on August 16, 2011. On
August 18, 2011, the trial court issued its written order dismissing the charges with prejudice
and ordered a hearing on the Motion for Reconsideration. After the hearing, the trial court
denied the motion and affirmed its decision dismissing the charges with prejudice. This
appeal followed.
DISCUSSION
The Colville Law and Order Code mandates that “all criminal proceedings are initiated
by a complaint”. LOC 2-1-30. It also provides that citations completed by police officers
“shall serve as the complaint for purposes of prosecution in court”. LOC 2-1-72.
60All criminal arraignments are set for 1:00 p.m. on Mondays, Tuesdays, Wednesdays and Fridays.
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In the matters before us no complaint or citation had been filed with the court when the
trial court judge dismissed both pending charges with prejudice. To be more specific, no
criminal proceedings were in place when the trial court judge dismissed the “charges” against
the defendants.
This case is similar to CCT v. Boyd, 5 CTCR 21, 10 CCAR 9 (2009) in that no complaint or
citation had been filed prior to his first appearance in court. Mr. Boyd was arrested on July 16,
2009, held overnight in the tribal jail, and brought before a judge on a motion for bail review.
The judge, after finding no probable cause for Mr. Boyd’s arrest, released him and set a date for
arraignment. This was done despite the fact that no complaint or citation had been filed. The
Tribes subsequently filed their complaint and immediately thereafter filed an interlocutory
appeal. We found the trial court judge had acted without authority in hearing the matter before
a complaint or citation had been filed and upheld the appeal. The trial court judge was
removed from further participation in the matter.
Another case similar to this arose in Washington State wherein the state filed an
information against a defendant charging him with murder. Near the date set for trial, the
state moved to dismiss the information because a key witness could not be located. The trial
court judge dismissed the information without prejudice. Shortly thereafter, the state located
the witness and asked the judge to resume the trial. The judge noted that the information had
been dismissed. The state said it would re-file the information once the trial reconvened.
A
new information was not filed, but the trial went forward and the defendant was convicted.
He appealed his conviction which was vacated on the grounds that the trial court did not
have subject matter jurisdiction. State v. Corrado, 79 Wn. App 612, 898 P.2d 360 (1995)61
In the matter before us, we have determined that the trial court judge had no criminal
cases before her when she dismissed them. We are not aware of any authority granted to a
trial court to dismiss pending criminal charges before they are filed with the court.
Accordingly, we hold that the trial court judge was without authority to dismiss criminal
charges which might come before her but did not exist as an official court proceeding at the
61The Corrado decision has been criticized by other courts. See State v. Franks, 105 Wash. App. 950, 22 P.3d 269 (2001) and State v.
Barnes, 146 Wash. 2d 74, 43 P.3d 490 (2002). In summary, the criticism was that a Washington State Superior Court always has
subject matter jurisdiction which is granted by the Washington State Constitution. Both cases agreed, however, that Corrado’s
conviction could have been vacated on other grounds.
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time. The order dismissing both cases with prejudice was without any law or precedent
authorizing it and was, therefore, void ab initio.62
We need not reach the issue of the appropriateness of the dismissal with prejudice in
these cases in light of our ruling.
CONCLUSION
We reverse the Trial Court's decision and remand for the Trial Court to take action
consistent with this Opinion.
Amanda MATT, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP13-012, 6 CTCR 10
11 CCAR 50
[Virginia Gomez, Office of Public Defender, for Appellant.
Melissa Simonsen, Office of the Prosecuting Attorney, for Appellee.
Trial Court Case No. CR-2013-36017]
Hearing held September 20, 2013. Decision entered October 23, 2013.
Before Acting Chief Justice Theresa M. Pouley and Justice R. John Sloan Jr.
Pouley, CJ
This matter came before the Court of Appeals (COA) for Oral Argument on September
20, 2013. Virginia Gomez appeared for Appellant and Melissa Simonsen appeared for Appellee.
Oral arguments were held before the Acting Chief Justice Theresa Pouley and Justice John
Sloan.63
62Our holding does not mean the charges against the appellees are no longer valid and cannot be prosecuted. The Tribes may
proceed to prosecute assuming availability of witnesses and so forth.
63 Justice Pascal was assigned to this panel but passed away prior to the hearing.
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The facts for purposes of the Initial hearing were not disputed and are as follows. The
Appellant was arraigned on June 3, 2013 and bail was set at $500.00 or alternatively she could
be released on Electronic Home Monitoring (EHM). Appellant moved for reconsideration of
the bail and the trial court denied the motion. Appellant was released on EHM on June 12,
2013 and bond was posted on June 21, 2013. On June 21, 2013, Appellant filed this appeal
claiming that bail was excessive, that the trial court erred in denial of a release on her personal
recognizance and that the trial court erred in requiring bail. While Appellant was on pretrial
release, the trial court issued a no bail warrant for a new additional criminal offense. The
Appellant did not appear for oral argument and the warrant for her arrest remained active at
the time of the initial hearing.
The Tribe filed a Motion to Dismiss on August 19, 2013, arguing that there is no final
judgment, sentence or disposition order64, therefore the appeal isn’t ripe for review, that there
is no issue to be determined because the Appellant posted bail, was out on release and now has
an active warrant and that Appellant failed to file a brief as required under COACR13-A(a).
The Panel heard arguments on the motion.
The COA has ruled in prior cases that final orders are those written orders that dispose
of substantive issues. In this case, a review of bail that was already posted does not rise to the
level of disposing of substantive issues. The issue of excessive bail similarly becomes moot
when the bail was actually posted. Therefore the Motion to Dismiss is granted. As we are
dismissing on the ripeness issue, we will not rule on the issue of failure to file a brief.
ORDER
It is ORDERED that the Motion to Dismiss is GRANTED and this matter shall be remanded to
the Trial Court for action consistent with this Order.
Robert PARISIAN Jr., Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
AP14-004, 6 CTCR 11
11 CCAR 51
64 Colville Tribal Law & Order Code § 1-2-106(c); Court of Appeals Rule 5(a).
Colville Court of Appeals Reporter
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11 CCAR ___
[Virginia Gomez, Office of Public Defender, for Appellant.
Curtis Slatina, Office of Prosecuting Attorney, for Appellee.
Trial Court case number CR-2014-37025]
Filed February 20, 2014. Decided March 5, 2014.
Before Chief Justice Anita Dupris
SUMMARY
Appellant, represented by Virginia Gomez, Office of Public Defender, filed a
Notice of Appeal/ Motion for Immediate Review of a Denial of a Writ of Habeas
Corpus. Appellee, Gary Zacherle, Commander of the CCT jail, entered a limited
appearance through CCT’s Office of Reservation Attorney (ORA), Chaitna Sinhya.
This Court, in order to give the matter a full review, first entered a Writ of
Mandamus on February 21, 2014, directing the Trial Court to enter its written order on
the Writ of Habeas Corpus. As we stated in our Order Regarding Interlocutory Appeal
Review and Writ of Mandamus, “Typically Writs for Habeas Corpus are heard on a
very short time line, and written orders should be entered promptly....” The Writ of
Habeas Corpus was filed on January 27, 2014; the hearing on the Writ was heard on
February 7, 2014, and when this Appeal was filed on February 14, 2014 (15 days from
the time the Writ was filed), the Trial Court still hadn’t issued its final order on the
Writ. The Trial Court entered its Memorandum Opinion and Order from Hearing on
Petition for Writ of Habeas Corpus on February 24, 2014.
Appellee filed a Motion to Dismiss Appellant’s Appeal and Deny Appellant’s
Motion for Immediate Review. Based on our decision herein we conclude that there is
sufficient basis to review Appellant’s pleadings and the motion should be denied.
After reviewing the record and applicable law, the Panel finds that this matter
should be remanded to allow the Trial Court to specifically address the issue of whether
the bail in this matter violates Appellant’s right against excessive bail. CTC §1-5-2(g).
This holding is based on the reasoning below.
DISCUSSION
Colville Court of Appeals Reporter
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This case comes before us in a series of interlocutory appeals filed over the last
year specifically asking this Court to address the issue of the reasonableness of bail. See
Matt v. CCT, 11 CCAR 50 (October 23, 2013), Vargas v. CCT, AP13-016IA (unpublished
opinion; December 2, 2013), and Friedlander v. CCT, AP13-017IA (unpublished opinion;
December 2, 2013). Each of the foregoing cases was filed as an Interlocutory Appeal in
which the respective appellants alleged unreasonable or excessive bail. Our Court held
that it was not an interlocutory issue in that the statutory law of the Tribes first directs
the appellants to file a Writ of Habeas Corpus on the issue of bail (CTC §2-12-211)
before bringing the matter before the Court of Appeals. In both Vargas and Friedlander
we acknowledged that although other jurisdictions would not use the Writ of Habeas
Corpus as a mechanism to review bail, and there may be other best practices which
could address the issue better, our statutory laws require it.65
The Trial Court’s Memorandum Opinion and Order from Hearing on Petition for
Writ of Habeas Corpus dated February 24, 2013 (Order), denies Appellant’s request for
a Writ without stating a reason why. Rather the Order states that a motion to reduce or
reconsider a bail reduction is the more appropriate remedy for bail questions, then it
goes on to set out procedural guidelines for filing a Writ of Habeas Corpus. As
elucidating as this is, we find it non-responsive to the issue of bail.
The Trial Court, in CCT v. Amanda Matt, Case No. CR-2013-26017, set out
standards for the Trial Court to consider when setting bail. It was a well-reasoned
opinion which addressed legal concerns usually raised in bail questions, such as not
using bail as a punishment for the crime charged, yet considering the interests of both
the public and the individual charged. We need not go through the standards set out in
the Matt opinion. It was well-researched and well-stated. It considered the seminal case
regarding excessive bail, i.e. Stack v. Boyle, 341 U.S. 1 (1951), and the parameters set out
in that case. We find no reason why we should not adopt these standards set out in the
Trial Court’s opinion in the Matt case.
What we do find in the Trial Court’s record, however, is that the Trial Judge did
not follow its own Matt standards, or rather, there is nothing in the record to indicate
65. 2-1-211 states: “When a person is imprisoned or detained in custody on any criminal charge, for want
of bail, such person is entitled to a Writ of Habeas Corpus for the purpose of giving bail, upon averring
that fact in his petition, without alleging that he is illegally confined.”
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11 CCAR ___
that the standards were followed. A review of the Arraignment and Bail Hearing on
January 14, 2014 reveals that Trial Judge had adequate information before her to assess
the reasonableness of bail , but when asked to state the basis for which she set such a
high amount, the Judge refused to do so.66 This makes it an incomplete record for us.
Bail of $10,000 is very high. We all know that our jurisdiction, Okanogan and Ferry
Counties, are two of the poorest counties in the State of Washington. Those of us who
have lived here, and worked here, know that unemployment is high.
We cannot say bail can never be set this high. We do not say the Trial Judge
must issue written findings every time she makes a decision on the record. What we do
expect, however, is that every decision should be supported by the record, and when
there is a question touching on a defendant’s fundamental rights, the Judge needs to
state on record the basis of her decision. This was not done, and the Writ was filed
appropriately.
HOLDING
Based on the foregoing, we hold that The Writ of Habeas Corpus is the correct
way to raise an issue of excessive bail. The amount of bail set of $10,000.00 raises a
question of whether or not it is excessive. There is an inadequate record to show what
the Trial Judge considered, as set out in the bail standards identified in the Matt case to
support a finding of such a high bail. We shall reserve our jurisdiction over the Writ of
Habeas Corpus and remand this matter to the
Trial Court for a new bail hearing, at which the Judge shall state on record the reasons
for setting bail. Appellee’s Motion to Dismiss is denied.
It is so Ordered.
Colville Indian Housing Authority, Appellant,
vs.
Darcy K. Edwards, Appellee.
AP14-007 IA, 6 CTCR 12
66. The actual recording of the Judge’s refusal is a bit concerting. When asked to state findings on the
record, she replied in a very gruff manner, “No, I’m not going to!” We once again counsel the judges to
remember we are tribal leaders, and as such need to treat all who come before with respect.
Colville Court of Appeals Reporter
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11 CCAR ___
11 CCAR 54
[Edmund Clay Goodman, Hobbs & Strauss, for Appellant.
Darcy K. Edwards, Pro se.
Trial Court Case no. CV-EV-2013-36298]
Filed March 5, 2014. Decided March 11, 2014.
Before Chief Justice Anita Dupris
This matter came before the Court of Appeals pursuant to the timely filing of a
Notice of Interlocutory Appeal by Appellant on March 5, 2014. Appellant is alleging the
issue presented involves a controlling question of procedural law and that the decision
departs from the accepted and usual court of judicial proceeding. Based on the
reasoning below, the Court finds sufficient grounds to remand to the Trial Court for
scheduling of an immediate hearing for Unlawful Detainer.
SUMMARY
A civil complaint was filed by Appellant on December 26, 2013, along with a
Notice of Summons for Unlawful Detainer. An Order was entered on January 3, 2014,
setting this matter for hearing on February 18, 2014. On February 18, 23014, an informal
memo was placed in the file by a clerk with stated that another individual (not
identified as a party to the action) indicated that Ms. Edwards was incarcerated and that
she “somehow wants to continue the court date.” Nothing else was stated. On that day,
the judge entered an order continuing the hearing to March 5, 2014 for cause, stating
that the respondent was in jail and it was unknown for what or for how long. Three
days later, Appellant filed a “Motion to Proceed with Hearing on March 5, 2014, with
Telephonic Appearance by Respondent if Necessary.” The judge entered an order on
February 26, 2014 denying the “Motion” and continuing the hearing for an additional
30 days. Appellant then filed this Notion of Interlocutory Appeal.
DISCUSSION
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11 CCAR ___
The Chief Justice has broad discretion to review interlocutory appeals and apply
applicable law. After a review of the record, the Chief Justice has found that the trial
judge did not act objectively in this case when she sua sponte67 continued the hearing
twice, without any actual input from Ms. Edwards68.
“A judge is to conduct hearing objectively and fairly. This includes
conducting the hearing without looking like she is taking one side or the
other. Even if the judge hasn’t taken one side or the other, if it looks like
she is, this violated procedural due process.” (Emphasis in order) Edwards v.
Bercier, 10 CCAR 18, 5 CTCR 23, 37 ILR 6009 (2009).
It is important that the tribal judge maintain his or her objectivity at all
times, and respect the roles others have in cases that come before the
judge. The judge, as a tribal leader, must not appear to take sides nor
appear to rule based on his or her emotions without regard to what the
law is in the case.” CCT v. Boyd, 10 CCAR 08, 5 CTCR 21, 36 ILR 6099
(2009).
“Due process guarantees a party the right to participate, it does not
mandate that the Court never have a hearing unless and until a party
avails himself of the opportunity to participate.” Zavala v. Milstead, 10
CCAR 58, 5 CTCR 38 (2011).
This case was scheduled for an unlawful detainer hearing. On the day of the
hearing, the court apparently received a message from someone that the respondent
was incarcerated. There is nothing in the record indicating that the respondent herself
67 There seems to be a recurring problem with trial court judges acting sua sponte and not seeking input
from both parties before making substantive decisions. We are putting the Trial Court on notice that this
problem needs to be addressed.
68 CTLOC § 1-2-10, Timely Filing of Motions. A written motion, including those which may be heard ex
parte, shall be filed and served on opposing party no later than five (5) days prior to the time specified for
the hearing, unless a different period is fixed by these rules, by order of the Court or for good cause
shown. Motions shall be supported by affidavit, which shall be served with the motion...
Colville Court of Appeals Reporter
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11 CCAR ___
requested the continuance. It is unclear how the person advising the court of the
incarceration was related to the respondent or if that person had any authority to make
any requests on behalf of the respondent. In fact, the message just stated that “somehow
wants to continue the court case.” Based on this sparse information, the judge sua sponte
decided to continue the hearing. A new hearing was set by the judge, apparently
without input by the petitioner. The Petitioner apparently did not object to the
continuance order after the fact, but wanting to make sure that the newly set hearing
would go as scheduled and not waste resources, moved the court to allow the hearing
to proceed, even if the respondent had to appear by telephone. No continuation of this
hearing was requested, just confirmation that the hearing would proceed as scheduled.
The judge denied the motion and entered another sua sponte order for an additional 30
days.
The Chief Justice has reviewed the filing pursuant to COACR 12-A. There was no
formal continuance requested in this matter by Ms. Edwards69. While it is unfortunate
that she was allegedly incarcerated at the time of the hearing, she still has an obligation
to defend her position. The initial continuance was apparently made without any input
by CIHA. CIHA was denied the opportunity to object to the continuance. Then when
CIHA attempted to assure that the next hearing would be held, even if that presence
was by telephone70, the judge decided on her own to continue the hearing yet again.
There was no written motion to continue by either party. The judge stated that she
would not be in court on the new day and that the hearing would need to be continued
anyway. I disagree. There are several judges appointed to the Bench who could have
heard the matter on the new day. This was a new filing and not prior decisions had
been made by the judge which would require that she continue as the only judge to
hear this matter.
CTLOC § 9-3-23, Hearing, states that the Tribal Court shall set an unlawful
detainer action for hearing expeditiously, no later than thirty (30) days following the
69 There was no followup written motion. It also appears that there was no independent
verification that the respondent was incarcerated.
70 While not a common practice, appearances by telephone are allowed in most cases when properly
requested and good cause for the appearance has been established.
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date that the defendant must respond to the suit. In this matter, that would have been
thirty days after January 16, 2014, i.e. February 15, 2014. The original date of February
18, 2014, did not meet that requirement, but due to court congestion, might be allowed.
Ordering a continuance of that date would only be allowed if there was good shown. A
possible incarceration by the respondent does not meet that standard, especially when
there has been no formal request for continuance., A continuance for an additional
thirty days for the judge to be present in court definitely does not meet that good cause
standard in this case.
In almost every case there are two sides who need to be heard equally. The
petitioner feels that a wrong has been committed against him. He file a complaint in
tribal court. The respondent may or may not file an answer within the time limit set by
statute. A hearing is set to listen to both sides of the dispute. Time limits for these
matters are set by the governing body of the Tribe to ensure that these disputes are
heard and settled in a manner that is fair to both sides,. Tribal custom dictates that the
judge appear unbiased.
“In our court system the cultural approach has been eroded and largely
replaced by the non-Indian court system. Because of this, it is the tribal
judge’s heightened responsibility to maintain the cultural milieu of the
proceedings before it. The judge is a tribal leader, who must make
day-to-day decision for the good of the whole community, while at the
same time maintaining the integrity of the case for those individuals
before him.” Sonnenberg v. Colville Tribal Court, 5 CCAR 09, 3 CTCR 09, 26
ILR 6073 (1999).
“While this Court is cognizant of emergency circumstances, the issues as
cited in the Motion do not rise to the level which would overcome the
burden to protect the Appellant’s speedy trial rights,. Any one of the
errors committed alone might have been harmless error, their cumulative
effe3ct was of a denial of Appellant’s right to due process. We find that
the Trial Court erred in granting the Motion to Continue without
concurrence by the defendant and by not holding a motion hearing. Yallup
v CCT, 11 CCAR 01, 6 CTCR 01 (2011).
Colville Court of Appeals Reporter
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11 CCAR ___
In the instant case, the judge appeared to disregard the petitioner’s expectation
of relief when the judge continued the matter without proper reason to do so. The
petitioner followed the law and expected a hearing to be held. That hearing was
continued without any input from petitioner and without the proper framework being
done by the respondent. The first continuance could be allowed if an emergency was
properly documented, but the second continuance did not have a sound basis for being
entered. The appellant’s due process rights were violated when the hearing was initially
set beyond the thirty (30) day limit and then compounded by the two continuances.
CONCLUSION
Interlocutory cases are still the exception and not the rule; we must consider
them on a case-by-case basis. In this particular case, because of the obvious procedural
errors, in order to ensure due process to all litigants, I find there were sufficient errors
to review the issues raised. Based on by discretion as the Chief Justice, this case is
remanded and the Trial Court is directed to set a hearing expeditiously (which is not
April 14) within ten (10) days of this Order.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Daniel CONANT and Cameron TREVINO, Appellees.
AP13-004/005, 6 CTCR 13
11 CCAR 59
[Appellant appeared through spokesperson Melissa Simonsen, Office of Prosecuting Attorney.
Appellees appeared through spokesperson Jonie Bray, Office of Public Defender.
Trial Court Case Nos. CR-2012-35010 and 35308]
Argued March 21, 2014. Decided April 24, 2014.
Before Justice Dennis L. Nelson, Justice Dave Bonga and Justice Mike Taylor
Colville Court of Appeals Reporter
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11 CCAR ___
Nelson, J
Daniel Conant, Jr. (Conant) and Cameron Trevino (Trevino) were each separately
charged with violating CTC 3-1-123, Disobedience of a Lawful Court Order. The cases
were combined at the Initial Hearing as both had similar issues. Conant was alleged to
have violated a pre-trial release condition ordered by a Washington State Superior
Court. Trevino was alleged to have violated a condition of probation ordered by a
United States District Court. The Tribal Court in each case dismissed the complaints
against Conant and Trevino on the grounds that CTC 3-1-123 does not apply to orders
issued by foreign courts. We affirm.
ISSUE
Whether the Tribal Court erred as a matter of law in dismissing the complaints
against the appellees on the grounds that CTC 3-1-123 does not apply to orders issued
by foreign courts.
STANDARD OF REVIEW
The issue before the court is solely one of law. Alleged errors of law are
reviewed de novo. Colville Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 IlR
6059 (1995).
Wiley, et al v. Colville Confederated Tribes, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059 (1995);
Palmer v. Millard, et al, 3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996)
FACTS
Conant was alleged to have violated an order releasing him from custody on the
condition that he not drive an automobile other than to and from his place of work.
The order was issued by the Okanogan Superior Court, Case No. 11-1-00085-9. He
admitted to tribal police officers that he drove an automobile within the exterior
boundaries of the Colville Indian Reservation in violation of the order of the Superior
Court.
Trevino was arrested within the exterior boundaries of the Colville Indian
Reservation for Driving While License Suspended (DWLS), a violation of CTC 3-3-5.
At the time of his arrest, Trevino was on probation for his conviction in United States
Colville Court of Appeals Reporter
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11 CCAR ___
Federal Court for being a Felon in Possession of a Firearm, 18 U.S.C. 922(g)(1). Case
No. 2011CR00005-001. A condition of his probation was that he not violate federal,
state, or local law, which in this case, was Driving While License Suspended.
Accordingly, the Tribes charged him with violating CTC 3-1-123, for disobeying the
federal court order.
DISCUSSION
The issue before us is whether CTC 3-1-123 is applicable to orders, subpoenas, or
warrants issued by a foreign court. CTC 3-1-123 states:
“Disobedience of a Lawful Order of the Court. Any person who
willfully violates a lawful order, subpoena, or warrant issue
by the Tribal Court, or any officer thereof shall be guilty of
Disobedience to a Lawful Court Order. Disobedience of a Lawful
Court Order is a Class B offense.”
The Tribes contend the statute is not clear on its face and, for this reason, we
must look “to the Tribal Code as a whole”. Appellant Conant brief, Pg. 3. In essence,
the Tribes argue that CTC 3-1-123 should be interpreted as a tool to protect tribal
sovereignty and the general welfare of the reservation community.
The Tribes further argue that CTC 3-1-231 supports their contention that CTC
3-2-123 is applicable to foreign orders.
CTC 3-1-231 Violation of Federal or State Law
states:
Violation of Federal or State Law. Any person who shall commit
any act which would be violative of federal criminal law or
Washington criminal law, unless authorized by tribal law, shall be
guilty of Violation of Federal or State law under this Section.
Violation of Federal or State Law is a Class A offense. “71
71 The court is presently reviewing this statute for its constitutionality. See CCT v. Vincent, AP14-002.
Colville Court of Appeals Reporter
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The Tribes’ final argument is that because CTC 3-1-123 is unclear on its face and
ambiguous we should apply the last antecedent rule. The last antecedent rule is a
doctrine of statutory interpretation whereby “(r)eferential and qualifying phrases,
where no contrary intention appears, refer solely to the last antecedent.” A Manual of
Style for Contract Drafting, Kenneth A. Adams.
The Tribes contend the last
antecedent rule mandates that the trial court recognize orders and subpoenas of foreign
courts, but not their warrants.72
Before further considering the arguments of the appellant, we first look to the
Tribal Code for guidance in interpreting its statutes. CTC § 1-1-7(b) directs that we
look at the statute’s language and give words their plain meaning. We proceed “to
extrinsic interpretive aids only when the statute contains unclear or ambiguous
language. Green v. Green, 5 CTCR 29, 10 CCAR 37 (2011). We find that the statute in
question, CTC 1-2-123, is clear on its face and is not ambiguous.
Accordingly, there is no need to further consider the arguments set forth by the
appellant alleging the statute is ambiguous.
The decisions of the trial courts are AFFIRMED.
In Re S. L., A Minor Child,
Coeur d’Alene Tribe, Appellant,
vs.
S. L., R. L., Colville Confederated Tribes, Appellees.
AP13-019, 6 CTCR 14
11 CCAR 62
[Eric Van Orden, Legal Counsel, appeared for Appellant.
Curtis Slatina, Office of Prosecuting Attorney, appeared for Appellee-Colville Tribes; Lane Throssell,
Legal Services, appeared for Appellee-father; Jay Manon, Attorney, appeared for Appellee-mother; Jonnie
Bray, Office of Public Defender, appeared for Appellee-Minor Child.
Juvenile Court No. MI-2013-33007]
Oral argument held June 20, 2014. Decided July 23, 2014.
72 "We do not decide whether such a doctrine applies to the interpretation of tribal legislation. Careful drafting can, however,
avoid having the issue arise."
Colville Court of Appeals Reporter
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11 CCAR ___
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Michael Taylor
Pouley, J.
FACTS
The following facts are undisputed. S.L., a minor child, is an enrolled member of the
Coeur d’Alene Tribe (the “CDA Tribe” or “CDA”). The child’s mother is an enrolled member of
the CDA Tribe. The child lived with her mother on the CDA Reservation since birth. The
mother has lived on the CDA Reservation her entire life. The child’s mother and father were
not married. The father is an enrolled member of the Colville Confederated Tribes, but he also
resided with the mother on the CDA Reservation before and after the child’s birth. The father
may have last lived on the Colville Reservation as a teenager.
On March 31, 2013, the mother asked the father to come and get the child. There is some
dispute as to the nature of this request. The father and the Colville Tribe characterize the
mother’s action as “abandonment,” but the mother denies this. The father was on the Colville
Reservation at the time and his cousin took him to the CDA Reservation to pick up the child
from the mother. After getting the child, the father went to relatives’ homes on the CDA
Reservation to get supplies for the baby and then to the home of a relative on the Colville
Reservation. The mother denies giving permission to or expecting the father to take the child to
the Colville Reservation. At no time prior to March 31, 2013 had the father taken the child to the
Colville Reservation.
At her home on the Colville Reservation, the father’s aunt noticed the child had a severe
diaper rash, but did not seek immediate medical attention, and the father left with the child to a
neighbor’s home. The neighbor alerted authorities about the diaper rash and on April 2, 2013
Colville Family Services took the child into protective custody and placed the child with the
father’s aunt.
The Colville Tribal Court conducted a temporary custody hearing on April 8, 2013. The
Court found reasonable cause to believe that S.L. was in immediate danger from her parents,
there was need for temporary shelter, and Colville Tribal Children and Family Services were
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11 CCAR ___
named temporary custodians. The child was placed with an aunt on the Colville Reservation
pending further proceedings. On April 18, 2013 the Chief Judge of the Colville Tribal Court
granted the CDA Tribe’s motion to transfer the case to the CDA Tribal Court. The CDA Tribal
Court accepted jurisdiction that same day. On April 19, 2013 a youth-in-need-of-care petition
was filed in the CDA Tribal Court.
It appears that the Colville order transferring the case to CDA may have been entered
without notice to the other parties involved in the matter and the Colville Tribes subsequently
moved for reconsideration. The Colville Court stayed the transfer order on April 23, 2013,
indicating the matter would be heard on an unspecified future date. On April 29, 2013 the CDA
Tribal Court entered an Order requesting that the Colville Court give full faith and credit to the
CDA Tribal Court orders finding that the child was a youth-in-need-of-care.
On May 31, 2013 the Colville Tribal Court “set aside” the order “that gave Coeur Dalene
(sic) Tribal Court exclusive jurisdiction” (presumably referring to the April 18 order
transferring the case to the CDA Tribal Court). The order further found “Both Tribal Courts
have concurrent jurisdiction in this matter.” The Court did not include any legal conclusions to
support the order, but did find the mother is an enrolled CDA member, the child is an enrolled
CDA member, the father is an enrolled Colville member, and that the Uniform Child Custody
Jurisdiction Act applies [now UCCJEA and in Washington the uniform act is codified at R.C.W.
26.27]. There were no findings as to the domicile or residence of the child or the parents.
Prior to the adjudicatory hearing in the matter, the CDA Tribe renewed its request to
transfer the case to the CDA Tribal Court. In the July 29, 2013 order following the adjudicatory
hearing, the Colville Trial Court reserved “its decision on transferring this case to the Coeur
d’Alene Tribe until at least the dispositional hearing.” The July 29 order found that the father
had no residence of his own, and that the neglect to the child occurred on the CDA Reservation.
Following a dispositional hearing on September 24, 2013, the Colville Court entered an order
finding that the child and mother were domiciled on the CDA Reservation, they were both
CDA tribal members and that the child “resided on the Colville Reservation” at the time the
proceedings began. The Court again found the UCCJEA applied, and that the Colville Tribal
Court was the most convenient forum. The Colville Trial Court concluded that the CDA and
the Colville Tribal Courts had concurrent jurisdiction over the child and therefore denied the
CDA Tribe’s motion to transfer the case. The Coeur d’Alene Tribe and the mother appeal the
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decision of the Trial Court finding concurrent jurisdiction and refusing to transfer the matter to
the CDA Tribal Court.
DISCUSSION
The question before this Court is whether the Coeur d’Alene Tribal Court holds
exclusive jurisdiction to hear the matter, in which case the matter must be transferred, or
whether, as the Colville Trial Court found, jurisdiction is concurrent with both tribes and if so,
whether the matter should be heard in the Colville Tribal Court. Because we find the Indian
Child Welfare Act is controlling, we REVERSE the decision of the Colville Trial Court and
REMAND with directions to transfer the case to the Coeur d’Alene Tribal Court.
Title 5-2 of the Colville Tribal Code initially establishes the scope of the Colville Tribal
Court’s jurisdiction to consider minor-in-need-of-care petitions. The “Original Jurisd
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