Michael RAYTON and Stephanie PALMER, Appellants,
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Michael RAYTON and Stephanie PALMER, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, et al., Appellee.
Case No. AP21-013/014, 8 CTCR 27
16 CCAR 01
[Mark Carroll, appeared for Appellants.
Craig Jacobson, appeared for Appellee.
Trial Court Case No. CV-OC-2021-44075/76]
Decided January 3, 2023
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Jane M. Smith
Dupris, CJ
SUMMARY
Appellants Michael Rayton (Rayton) and Stephanie Palmer (Palmer) were each terminated from
their respective jobs with the Colville Confederated Tribes (CCT). Rayton was terminated in August 2019
for alleged violations of the Tribes’ Employee Procedures Manual (EPM). Palmer was terminated in
September, 2019. Both employees were terminated under the 2018 EPM terms and procedures.
Rayton followed the EPM procedures current at the time to appeal his termination. He had his
pre-hearing conference and had an Internal Review Board (IRB) hearing scheduled for October, 30, 2019.
On October 10, 2019, the Colville Business Council (CBC) amended the 2018 EPM through
Resolution 2019-633. The Resolution specified that the amendments were to be effective immediately
upon approval by the CBC.
On October 11, Palmer e-mailed her request for an IRB Hearing. Then on October 15, 2019, five
days after the passage of Resolution 2019-633 (Resolution), she requested a hearing be changed to before
an Administrative Law Judge (ALJ) as provided in the Resolution. Her request was denied. She had a prehearing to the IRB on October 29, 2019. Her IRB hearing was on November 20, 2019, at which time her
termination was affirmed.
Rayton had his IRB hearing on October 30, 2019, at which time he asked that his appeal be
changed to before an ALJ. His request was denied. His termination was affirmed by the IRB.
Both Rayton and Palmer filed civil cases in the Trial Court on their respective denials of having
hearings before an ALJ instead of the IRB. The Trial Court affirmed the denial of the ALJ hearings in both
cases. This appeal followed. Both appeals were consolidated at the Initial Hearing on February 18, 2022
because of the similar issues raised by both Appellants. Based on the reasoning below, we affirm the Trial
Court’s decisions.
ISSUES
1.
Did the Trial Court err in finding Resolution 2019-633, in which IRB review of
employment issues were to be heard by an Administrative Law Judge, not applicable to
Appellants’ employment dismissals, especially in light of allegations of lack of
procedural and substantive due process claims?
2.
Did the Court err by not granting Appellants’ requests that Appellants be given
information regarding the Tribes’ insurance policy?
STANDARD OF REVIEW
Both issues are issues of law. The standard of review is de novo. CCT v. Naff, 2 CCAR 50 (1995).
DISCUSSION
1. Did the Trial Court err in finding Resolution 2019-633, in which IRB review of
employment issues were to be heard by an Administrative Law Judge, not applicable to
Appellants’ employment dismissals, especially in light of allegations of lack of
procedural and substantive due process claims?
Resolution 2019-633, passed on October 10, 2019, states, in relevant part, “...to enact the attached
amendments to the EPM effective immediately upon CBC approval.” (Emphasis added.). The
amendments changed employment termination review from the IRB to an Administrative Law Judge
(ALJ), and allows appellants to be represented by an attorney.
The Trial Court first held there was no applicable tribal law regarding retrospective versus
prospective application of a law. It held that absent a legislative intent by the CBC to apply the new EPM
requirement to include pending cases, it was only applicable prospectively. The Court analyzed the
Resolution’s language in light of Resolution 2021-321, which states the amendment to the Tribes’ Civil
Rights Statute, CTC, Chapter 1-5, was effective immediately, and applies to all cases, including pending
cases. The Court found, by this analysis, that the CBC evinced a lack of intent to apply the Resolution
retrospectively to all pending cases.
The Court held, as to statutory construction and interpretation, that “.’.. the courts have evolved a
strict rule of construction against a retrospective operation, and indulge in the presumption that the
legislature intended statutes or amendments thereto to operate prospectively.’” (citing Poston v. Clinton,
66 Wn.2d 911, 915-16, 406 P.2d 623 (1965)).
Appellants argue, citing CTC §1-1-7(b), that the phrase “effectively immediately” should be
given their plain meaning, which would be on the very date the Resolution became effective, i.e. October
10, 2019, a date prior to either of Appellants’ IRB hearings.
We review this appeal on the questions of law, and when a question of fact is raised, we give
deference to the Trial Court’s findings under an abuse of discretion standard. Before we assess the
arguments of whether the Trial Court found sufficient evidence that due process was provided to
Appellants in their IRB hearings, we assess when the jurisdiction attached to their cases. This is a
question not yet answered by this Court regarding administrative cases.
In both civil and criminal cases we have held that jurisdiction attaches once a petition or
complaint is filed. See, Simmons v. CCT, 6 CCAR 30 (2002) (accepting Washington rule, which follows
majority rule, as applying in criminal cases that jurisdiction attaches when the complaint is filed), and
Carson v. Barham, 7 CCAR 17 (2003) (the “first to file” rule grants jurisdiction to the first court where the
matter has been filed.)
We hold the same principle applies to administrative cases. Both Appellants filed first in the IRB.
We review the Trial Court’s decision only for alleged violations of due process and equal protection by
the IRB that would support a ruling to reverse and remand. As stated before, our review is for abuse of
discretion; we will not supplant our reasoning for the Trial Court’s just because we would have decided
differently had we been the judge. In order to reverse The Trial Court’s findings on due process the
findings must be unreasonable or based on untenable grounds. See, eg., Louie v. CCT, 7 CCAR 46 (2004);
CCT v. Condon, 12 CCAR 12 (2015); Randall/LaCourse v. CFS, 11 CCAR 39 (2015).
Appellants argue the lack of due process in the IRB process, alleging the information provided them
regarding their dismissal was late in coming, or not given to them at all. They did not have adequate
information to prepare for their respective hearings.
In their respective Notices of Appeal both Appellants assert they were not provided due process
by the Trial Court because the Judge dismissed their cases without allowing them a hearing on their
motions and complaints regarding whether there were or were not irregularities in the IRB.
Appellee asserts both Appellants were provided adequate due process in their IRB hearings: they
were given adequate notice and an opportunity to be heard. Appellee cites to Wilson v. Gilliland, 8 CCAR
64 (2006) and CCT v. Bessette, 12 CCAR 29 (2015) for the applicable due process standards established
by this Court in cases involving employee terminations.
The Trial Court held there was no reviewable evidence presented to determine any due
process problems with the IRB hearings provided Appellants. All parties were directed by the Trial Court
to present a list of evidence presented at their IRB hearings. The Court found, upon a review of
Appellee’s lists for both Appellants, that there was evidence that both Appellants were provided adequate
due process.
As to Appellant Palmer, the Court found she failed to provide the Court with a descriptive list of
any documents she did receive from Appellee, whereas Appellee provided a list of the documents it
provided to Appellant Palmer. As to Appellant Rayton, the Court found that the descriptive lists of both
parties showed that Appellant Rayton knew why he was terminated from his job, and had the opportunity
to present evidence on his behalf regarding the reasons he was terminated. The Court held this was
adequate due process.
The record supports the Trial Judge’s findings of adequate due process. The Trial Judge’s
decisions regarding the adequate due process are not based on unreasonable or untenable reasons. We so
hold.
2. Did the Court err by not granting Appellants’ requests that Appellants be given
information regarding the Tribes’ insurance policy?
The Tribes’ Civil Rights Statute, CTC Chapter 1-5, provides for a limited waiver of sovereign
immunity, and if available, an insurance policy to cover the Tribes’ liability for wrongful actions under
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CTC §§ 1-5-2 through 1-5-4. Appellants base their civil complaints on this Chapter, therefore arguing
they should have access to the information regarding the Tribes’ insurance policy.
Appellee assert that Appellant’s would only have access to the information if they have
established a valid claim under CTC § 1-5-2. The Trial Court held that some of the bases of the
Complaints are tort actions, and the Court is without jurisdiction over torts. We have held so in Dick/
Marconi v. CCT 15 CCAR 52 (2022).
As discussed supra, the Trial Court has found no violations of Appellants’ due process rights, and
we have upheld this ruling. There is an insurance policy, but Appellants have not established a right to
review it in that is not applicable to their cases. We so hold.
CONCLUSION
We find (1) jurisdiction over the two grievance appeals was in the IRB, and not under the new
EPM section that allows for an ALJ; (2) the record supports the Trial Court’s findings that each Appellant
received adequate due process in their IRB hearings, and Resolution 2019-633 only applies prospectively;
and (3) the record supports the Trial Judge’s finding that Appellants have not met their burden to establish
the applicability of CTC Chapter 1-5 to their causes of actions, and there is no right to be given
information on the Tribes’ liability insurance.
We so hold.
Based on the foregoing, now, therefore,
It is ORDERED that the Trial Court’s decisions in these matters are AFFIRMED and the Appeal
is DISMISSED. The matter is REMANDED to the Trial Court for actions consistent with this Opinion.
David PRIEST, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP23-001, 8 CTCR 28
16 CCAR 05
[Appellant appeared pro se.
Taima Carden appeared for Appellee.
Trial Court case no. CR-2022-45091]
Decided March 7, 2023.
Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Mary Finkbonner
Dupris, CJ
This matter came before this Court for an Initial Hearing on February 17, 2023. Appellant, David
Priest, appeared in person and pro se. Appellee, CCT, appeared through its spokesperson, Taima Carden.
The Court, after reviewing the record and applicable law, finds cause to deny the appeal and remand the
matter to the Trial Court. The decision is based on the reasoning set out below.
ISSUE
Appellant appeals the Trial Court Order Denying his Motion to Reconsider his 720 day jail
sentence, alleging the extended jail sentence violates his rights under the ICRA’s amendments regarding
the Tribal Law and Order Act (TLOA). He raises two issues under these arguments:
1. Does his extended jail sentence violate TLOA because, he alleges, the presiding Judge for his
arraignment was not an attorney? And
2. Does his extended jail sentence violate TLOA because, he alleges, the jail facility doesn’t
meet the standards required by TLOA?
FACTS
Appellant was charged with two drug charges (Possession of Heroin, and Manufacture, Cultivate,
Deliver fentanyl) on July 5, 2022.
On July 5, 2022 Appellant was arraigned before Judge Sophie Nomee, a lay judge, and a member
of the Colville Tribal Court bar. He entered guilty pleas to the two charges and then was appointed a
spokesperson from the CCT Public Defender’s Office for the sentencing.
At the Initial Hearing Appellee, Colville Confederated Tribes (CCT), through its spokesperson,
stated that the Public Defender was available at the hearing and advised Appellant that he should not enter
guilty pleas to the two charges, but Appellant made the decision to do so anyway.
On August 23, 2022 Appellant was sentenced by Judge Dana Kelley, a member of the WA State
Bar. He was sentenced to consecutive sentences of 360 days for each offense, for a total of 720 days. He
was given credit for 55 days served. There were no other conditions of his sentence; the case was to be
closed at the completion of his jail sentence.
Including the 55 days he was credited with, Appellant had completed 167 days of his 720
sentence by the date he filed his appeal, i.e. December 13, 2022. This left 553 days of his original
sentence still due.
On November 14, 2022, Appellant filed a Motion to Vacate, Set Aside Judgment/ Sentence with
the Trial Court. His brief Motion stated he was proceeding pro se, and that the basis for his motion was
for violations of 25 U.S.C. 1302( c)(3) and (5). He states there are violations of the procedural protections
therein (TLOA and ICRA). He states a sentence of 720 days was illegal.
In his Motion to the Trial Court he made the identical arguments he has asserted in this Appeal.
Judge Kelley denied the Motion on December 13, 2022, finding “...there is no basis in law or fact to
support it”. He made no other findings regarding Appellant’s arguments.
Appellant filed an appeal of this last Trial Court order denying his motion on December 13, 2022.
DISCUSSION
We have addressed TLOA 5 other times in this Court. Four of the cases involved the lack of
Rules of Evidence. In Frank v. CCT, 13 CCAR 10 (2016),and Martinez v. CCT, 13 CCAR 12 (2016) we
found that sentences over 360 violated TLOA because there were no Rules of Evidence as required by
TLOA.
In Desautel/Randall v. CCT, 13 CCAR 03 (2016) we found that TLOA was violated in extended
sentences for lack of Rules of Evidence, then we adopted the FRE’s as guidance until such time as the
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Tribes established its own Rules of Evidence.
In Carson v. CCT, 13 CCAR 25 (2017) we found no TLOA violation for lack of Rules of
Evidence because of our ruling in Desautel/Randall.
In Martinez the question was raised regarding the qualification of the Judge under TLOA, but we
found the question moot because we had ruled the extended sentence violated TLOA because of the lack
of Rules of Evidence.
The last, and most recent case dealing with TLOA was Picard v. CCT, 15 CCAR 01 (2020).
Picard recognized that sentences over 1 year may be entered by the Trial Court if the defendant is
provided (1) the right to effective assistance of counsel; (2) indigent defense by a bar licensed attorney;
(3) a presiding judge to be licensed by any jurisdiction and to have sufficient training in presiding over
criminal proceedings; (4) publically available criminal laws, rules of evidence, rules of criminal
procedure, and rules governing the recusal of judges; and (5) the court maintains a record of proceedings.
Picard found compliance with all of the requirements set out above that were raised by Appellant.
Regarding the two issues raised herein, i.e. unlicensed judge and inadequate jail, Picard found (1) the
issue of the judge’s qualifications was not raised as an issue; and (2) the issue of the adequacy of the jail
was raised for the first time on appeal, and there were insufficient facts to determine the nature of his
objections to the jail. We did not address either issue as not properly before the Court.
Although Appellant had a spokesperson at his sentencing, he has filed this case pro se. He is
appealing the latest Court order in his case in which the judge, (a licensed WA state attorney), denied his
Motion to Vacate, Set Aside Judgment and Sentence. He raises issues about his Judgment and Sentence
for the first time at the Trial Court level. He states Judge Nomee was not qualified to hear his case initially
in that she was not a licensed attorney. Judge Nomee, a lay judge, took Appellant’s guilty plea at a
telephonic hearing. On August 23, 2022 he was sentenced to the 720 days on a consecutive sentence by
Judge Kelley.
We do not rule on alleged facts for the first time in our Court. Fact-finding is initially addressed at
the Trial Court. Appellant made his arguments that are before us in this appeal through a motion to the
Trial Court through mere statements of the alleged violations with no other facts. He alleged Judge
Nomee “is not licensed to practice law by a Jurisdiction of the United States...” and she “...made a ruling,
telephonically, without Attorney present....” He did not offer any alleged proof of this statement in his
motion.
Further, he alleged in his motion that “CTCF (tribal Jail) is not in compliance with four types of
facilities required” by TLOA. There are no further allegations of proof of this assertion.
We recognized in Picard, supra, that TLOA requires “a presiding judge to be licensed by any
jurisdiction and to have sufficient training in presiding over criminal proceedings” (my emphasis) . In
Martinez, supra, Judge Nomee’s qualifications were challenged. We found, as to Judge Nomee, that she
had passed the Colville Tribal Bar Examination, and had attended several judicial education classes at the
National Judicial College (NJC) in Reno, Nevada. We found she holds a Tribal Judicial Skills Certificate
from the NJC. We did not decide regarding the sufficiency of these qualifications, however, since the
judgment and sentence were reversed for other reason.
We find we have not been presented with sufficient bases to grant an appeal in this case. The
challenges to Judge Nomee and the tribal jail rest on mere suppositions and not on any substantive
discussion from the Trial Court. Appellant waited about 5 months before raising his issues at the Trial
Court. His appeal is a collateral attack on his Judgment and Sentence, which was not timely appealed
when it was entered on August 23, 2022, and should be denied.
Based on the foregoing, now, therefore
It is ORDERED the Appeal herein is DENIED and this matter is REMANDED to the Trial Court
for actions consistent with this decision.
COLVILLE CONFEDERATED TRIBES, Appellant
vs.
Justine JAKE, Appellee
Case No. AP23-002, 8 CTCR 29
16 CCAR 08
[Taima Carden, Office of Prosecuting Attorney, for the Appellant.
Michael Humiston, Attorney, for the Appellee.
Trial Court No. CR-2022-45058; CR2022-45059; and CR-2023-46001]
PROCEDURAL SUMMARY
Appellee, Justine Jake, was charged with two drug charges on January 3, 2023, and was arraigned
on the same day. A bail hearing was also held on that date for two other outstanding cases. The Court
granted Appellant, Colville Tribes, request for bail setting it at $250.00 each for the three charges, i.e.
$750.00 total.
On February 3, 2023 Appellee filed a Writ of Habeas Corpus alleging she needed immediate
medical care for broken, infected teeth. The Judge granted the Writ and released Appellee on personal
recognizance without providing notice to Appellant of the Writ, and without a hearing on the request.
Appellant filed a timely appeal on February 9, 2023 and this Court held an Initial Hearing on February 17,
2023, at which we found the parties were to file briefs on the issue.
ISSUE
Is it appropriate for the Tribal Court to use CTC § 2-2-211 to address bail modification when bail
has already been allowed?
STANDARD OF REVIEW
The issue is a question of law. The standard of review is de novo. CCT v. Naff, 2 CCAR 50
(1995).
DISCUSSION
We addressed the issue of using a Writ of Habeas Corpus for bail issues in Parisien v. CCT, 11
CCAR 51 (2014). It was the fourth case in which this Court reviewed CTC §2-2-211 in light of
interlocutory appeals alleging excessive bail. See, Matt v. CCT, 11 CCAR 50 (2013), Vargas v. CCT,
AP13-016IA (unpublished opinion); and Friedlander v. CCT, AP13-017IA (unpublished opinion).
In Parisien we held “...the statutory law of the Tribes first directs the appellants to file a Writ of
Habeas Corpus on the issue of bail (CTC §2-2-211) before bringing the matter before the Court of
Appeals.” We now hold this is the wrong interpretation of CTC §2-2-211, and we overturn this ruling
based on the reasoning below.
CTC § 2-2-211, Writ for Purpose of Bail, 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 she is illegally
confined.” (Emphasis added). In our previous cases, culminating in Parisien, supra, we did not consider
the part of the statute that referred to “for want of bail.”
Further, in Parisien we held that the Trial Court’s finding that a motion to reduce or reconsider
bail reduction was more appropriate was not supported by the law. This was in error. Upon a careful
reading of the statute, a Writ of Habeas Corpus for bail purposes is limited to those who have not been
granted any bail. The defendant does not have to allege she is being illegally confined if she is filing
under this statute.
In this case Appellee was granted bail; bail was set at $250.00 for each case, for a total of
$750.00. Based on our caselaw at the time of Appellee filing the Writ of Habeas Corpus to address her
request to be released on bail, Appellee was not in error. The Trial Court, however, did not follow the
statute. It did not give notice to Appellant nor hold a hearing on the Writ. See CTC §§ 2-1-213 to 2-1-215.
There is nothing in the record to show why the Trial Court did not follow the statute.
Whether a Writ would be appropriate in cases in which excessive bail is set is an issue not
currently before us; however, it could raise a concern that the excessive bail is illegal, and, therefore,
subject to a review under this statute causing the defendant to be illegally confined. We will save that
issue for a more appropriate case.
Based on the foregoing we now hold that the part of Parisien v. CCT, 11 CCAR 51 (2014),
which requires a defendant to file a Writ of Habeas Corpus pursuant to CTC § 2-2-211 before seeking a
bail reduction or change is OVERTURNED, and it is appropriate to request bail changes by motions
before the Trial Court. This does not affect the use of CTC § 2-2-211 when a defendant is being held
without bail. We further hold that the Order of the Trial Court herein dated February 7, 2023 is
REVERSED and this matter is REMANDED for further action consistent with our opinion.
It is so ORDERED.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Melissa LOUIS-WILLIAMS, Appellee.
Case No. AP23-003, 8 CTCR 30
16 CCAR 10
[Tim Rybka, Attorney, for Appellant.
Mark Carroll, Attorney, for Appellee.
Trial Court Case No. CR-2018-41032]
Decided June 1, 2023
Before Hon. Anita Dupris, Hon. Theresa M. Pouley, and Hon. R. John Sloan Jr.
Dupris, CJ
PROCEDURAL HISTORY
On March 2, 2018 Appellant filed a criminal complaint against Appellee alleging one count of
Misuse of Public funds, CTC § 3-1-132, one count of Fraudulent Use of a Credit Card, CTC § 1-3-49, and
three counts of Obstructing Justice, CTC § 3-1-134. Appellant hired an outside spokesperson to prosecute
the case. On April 26, 2018, Appellant filed an Amended Complaint on the same charges. On January 17,
2018 then Chief Judge Steckel admitted Mr. Rybka to practice in the Colville Tribal Court.
Appellee brought her issues before the Trial Court through several motions to dismiss the charges
against her and appealed the rulings of the Trial Court denying the motions to dismiss. We entered an
Opinion Order on November 16, 2018 dismissing the Appeal, affirming the Trial Court, and remanding
the case to the Trial Court.
Appellee/defendant filed a motion to dismiss the case on April 29, 2019, alleging Appellant’s
Special Prosecutor, Tim Rybka, was not a member of the Colville Tribal Court Bar and, therefore, could
not represent Appellant. On May 22, 2019 Chief Judge Steckel held that Mr. Rybka had met the minimum
requirements of being a member of the bar set out in CTC § 1-1-181, the Tribes specifically hired him to
represent the Tribes in this case as a special prosecutor, and the Chief Judge had the authority, when
necessary, to waive the requirement that Mr. Rybka take a bar exam. Mr. Rybka signed a Spokesman’s
Oath on May 9, 2019 and Chief Judge Jordan admitted him to practice before the Colville Tribal Court by
Order dated May 22, 2019.
Appellee filed an Interlocutory Appeal on the May 22, 2019. The Interlocutory Appeal was denied
by Order dated June 13, 2019; we found that the issue did not rise to the high standards of interlocutory
review of an order as set out in COACR 12-A and CTC § 1-2-117. We found the “Code provides for
admission of bar members by the Court. There is nothing to restrict (or define)the procedures for doing
so, leaving it to the discretion of the Court.”
Appellee has continued to challenge Mr. Rybka’s representation of the Tribes/Appellant, asking
that the criminal charges be dismissed because Mr. Rybka was not qualified to represent litigants in the
Tribal Court. She relies on CTC § 1-1-180. On August 16, 2022 Associate Judge Kelley granted
Appellee’s Motion to Dismiss the Complaint against her holding that on March 2, 2018 and April 26,
2018, the operatives dates of the filing of the Complaint and the Amended Complaint respectively, Mr.
Rybka was not a member of the Colville Tribal Court Bar.
Appellant filed a timely Appeal on the issue. The Initial Hearing was held on April 21, 2023, at
which time we reversed and remanded the case to the Trial Court. The reasoning of the decision is set out
below.
ISSUE AND STANDARD OF REVIEW
The issue before us is a question of law, that is, is Mr. Rybka a legal member of the Colville
Tribal Court Bar? The standard of review is de novo. CCT v. Naff, 2 CCAR 50 (1995).
DISCUSSION
We are asked to overturn the Trial Court’s latest finding regarding Mr. Rybka’s status as a
Spokesperson eligible to practice in the Coville Tribal Court. It appears Appellee had filed at least nine
Motion to Dismiss at the Trial Court for various reasons, and the case had been before at least five Judges
throughout the pendency of the case.
According to Appellant’s Motion to Reconsider Judgement [sic] of the Order of August 8, 2022
Associate Judge Kelley dismissed the complaint because he found Mr. Rybka was not allowed to practice
in the Trial Court in that he had not met the statutory requirements at the time the first complaint was
filed, i.e. March 2, 2018. It appears the Judge relied on some language in our November 16, 2018 Opinion
Order regarding pro hac vice practices. In that Order we specifically found that the issue was not first
raised at the trial level, so we would not consider it. We went on with some dicta regarding the nature of
pro hac vice practice in other Courts and stated it was the first an issue to consider at the Trial Court.
We do not know why the fact that Mr. Rybka was admitted to practice first by Chief Judge
Steckel in 2017, and again by Chief Judge Jordan in 2019 was not considered by the Court in the latest
ruling of January 13, 2023, the basis of this current appeal. Secondly, we do not know why such a
procedural question would invalidate serious criminal charges which have not yet, it appears, to have
been brought to a hearing on the merits. The issue of Mr. Rybka’s ability to practice before the Court is
being used to collaterally attack the criminal complaints against Appellee, and do not to go the merits of
the underlying charges herein.
The Tribes have the right to choose who it wants to represent it in this case. The Tribes hired Mr.
Rybka. Two Chief Judges recognized the Tribes’ right to seek counsel of its own choosing, and
recognized it chose someone from the Northwest Intertribal Court System (NICS). Two Chief Judges, in
exercising their discretion, admitted Mr. Rybka into practice with the Colville Tribal Courts. There has
been a ruling by this Court already that such a decision by the Chief Judge did not abuse its discretion.
The Trial Court has committed an error in law by its ruling in the January 13, 2023 Order. We so hold.
Base on the foregoing, now, therefore
It is ORDERED that the Order of the Trial Court dated January, 13, 2023 is REVERSED and this
matter is REMANDED to the Trial Court for actions consistent with this Opinion.
David PRIEST and Gary LESSOR, Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP23-005 and AP23-006, 8 CTCR 31
16 CCAR 12
[Appellant Priest appeared pro se. Appellant Lessor appeared through spokesperson M. Humiston.
Appellee appeared through spokesperson T. Carden.
Trial Court Case No. CR-2022-45091 and CR-2019-42030/CR-2022-45051]
Decided September 18, 2023.
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice R. John Sloan Jr.
Dupris, CJ
FACTS
Appellant Lesser was sentenced on twelve (12) various counts under Trial Court case numbers
CR-2019-42030 (42030) and CR-2022-45051 (45051) to a total of 2,345 days in jail with 1,962 days
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suspended on conditions, leaving a total of 1,255 days to be served. In 42030 the Trial Judge granted
day-for-day credit to jail time for Appellant’s time at an in-patient treatment facility, with “[e]arly release
for inpatient treatment (day for day credit and suspend remaining time upon graduation.)” In 45051
Appellant was given credit for 18 days served. The jail sentences in 42030 and 45051 were to run
consecutively.
Appellant Priest pleaded guilty to two (2) counts of drug violations and was sentenced to two (2)
consecutive terms of 360 days in jail, with none suspended. No fines were imposed. In September, 2022,
Appellant Priest was remanded to federal custody to serve a jail term under a federal charge. At that time
Appellant Priest had completed 55 days of his tribal sentence.
On April 25, 2023 the Trial Court denied Appellant Lesser’s motion to correct the time he had
served on both sentences to reflect the time he had already served, and the time he spent in inpatient
treatment. On the same date the Trial Court denied Appellant Priest’s motion to clarify his jail term
sentence to reflect granting credit for the time he had already served.
The Trial Court found that both Appellants’ jail sentences were to start over from the initial
incarceration without credit for any time served away from the tribal jail facility. The Tribal Judge
deemed this policy to be “TLOA time.” The Trial Court stated “TLOA time restarts when there is a break
in custody and the individual returns to [tribal custody] so long as the break in incarceration was not
caused by the [tribal] Correction Facility.” The Trial Court used this reasoning in both Appellant Lesser
and Appellant Priest’s cases. Neither orders of the Trial Court for these Appellants give any authority or
reasoning for the creation of “TLOA time.”
Both Appellants filed timely appeals. Appellant Priest is pro se. Appellant Lesser is represented
by Michael Humiston, Spokesperson. At the Initial Hearing on June 16, 2023 this Court joined the cases
of both Appellants in that the issue was the same.
ISSUE
Does the imposition of “TLOA time” in excess of 360 days deprive defendants of due process
and equal protections of the law?
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STANDARD OF REVIEW
The facts of these cases are not disputed. The question is one of law. We review de novo. CCT v.
Naff, 2 CCAR 50, (1995).
DISCUSSION
Appellant Priest did not file a brief. He is pro se, so this does not impact our rulings herein.
Appellee Colville Tribes, did not file a brief, with no reason given to this Court for why one was not filed.
We will take this into account in our ruling. Appellant Lesser’s brief, albeit timely filed, does not
specifically address the “TLOA time” issue. It addresses an issue we have addressed in past TLOA cases
regarding whether a defendant can be sentenced longer than 360 days in a jail facility that does not
comply with TLOA. In this sense it is non-responsive to the issue.
We are left with whether the Trial Court’s orders denying Appellants credit for time served under
an artifice called “TLOA time” violates due process and equal protection rights of Appellants. Appellee’s
lack of brief means we don’t have any arguments to support the Trial Court’s “TLOA time” reasoning for
denying credit for time served.
We have already addressed whether a denial of credit for time served violates a defendant’s due
process and equal protection rights. Circle v. CCT, 10 CCAR 47 (2011). In Circle the Trial Court denied
credit for time served based on a finding that it was not allowed in domestic violence cases. We found that
Circle was denied the equal protection of the law in that anyone else incarcerated on a charge not related
to domestic violence was granted credit for time served. We instructed the Trial Court in Circle to use the
State guidelines regarding credit for time served as found in R.C.W. 9.94A.505(6). The time to be credited
has to be directly related to the charge for which the defendant is being held.
In this case Appellant Lesser was denied credit for time he spent in in-patient treatment, which
was specifically granted in his Judgment and Sentence in case 42030, as well as credit for 18 days served
in case 45051. Appellant Priest was denied credit for 55 days he had already served in his case. The days
to be credited to both Appellants were directly related to their sentences.
5
There is no need to reinvent the wheel; we have already addressed the issue of credit for time
served. The creation of “TLOA time” to deny credit for time served is not supported by our law. The
Tribes/Appellee has not given us any reason to recognize “TLOA time” as a method to ignore the time the
Appellants have served towards their sentences.
Based on the foregoing, we hold the Trial Court erred as a matter of law in denying Appellants
credit for the time they each served on their sentences, and hold the artifice of “TLOA time” created by
the Trial Court is in violation fo Appellants due process and equal protection rights. We REVERSE and
REMAND to the Trial Court for actions consistent with this Order.
Nathan MOULTON, Appellant,
vs.
COLVILLE TRIBAL FEDERATION CORPORATION, Appellee.
Case No. AP21-011, 8 CTCR 32
16 CCAR 15
[Michael Humiston, appeared for Appellant.
Timothy H. McLaughlin, appeared for Appellee.
Trial Court Case No. AP21-011]
Decided January 22, 2024
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Theresa M. Pouley
Dupris, CJ
This matter came before this Court for an Initial Hearing on January 11, 2022 on an Appeal
timely filed by Appellant on October 28, 2021 against Appellee on issues regarding motions for summary
judgment rulings at the Trial Court level. Appellant is represented by Michael Humiston, Spokesperson;
Appellee is represented by Timothy H. McLaughlin, Spokesperson.
Appellant appeals the Trial Court Order of September 30, 2021, Order Denying Petitioner’s
Motion for Summary Judgment, specifically the rulings that denied his Motion for Summary Judgment,
and that dismissed the case. Based on the reasoning set out below we affirm the Trial Court’s rulings, with
direction to the Trial Court to clarify that the cross-motion of summary judgment of Appellee is granted
and the cross-motion of Appellant is denied.
PROCEDURAL HISTORY
Appellant was hired by Appellee (CTFC) in April, 2015 under a contract to be the Fuel Director
for the Corporation. His contract was extended for three years in 2016. Appellant was a contract
employee, and not subject to CTFC’s general personnel policies. The contract set out specifically how it
could be terminated.
CTFC gave Appellant notice on April 18, 2017 that it intended to terminate it’s employment
contract based on fourteen reasons, and informed Appellant he had an opportunity to be heard on the
matter at a board meeting the following day. Appellant did not attend the meeting and on April 19, 2017
CTFC terminated its contract with Appellee.
In June, 2017 Appellant brought a civil action for wrongful termination in the Trial Court, which
is the basis of this appeal. In March, 2019, the Trial Court denied Appellee’s Motion to Dismiss the case
based on sovereign immunity. Extensive discovery transpired over the following year, culminating in
cross-motions for summary judgment filed by both parties, The Order of September 30, 2021 ensued and
is the basis for this Appeal.
ISSUES
Three issues were identified by the parties:
1.
What are the procedures applicable in addressing a motion for summary judgment?
2.
What is the standard the Court should use for such motions?
3.
Did the Trial Court err in applying those standards?
STANDARD OF REVIEW
Issues of law, are reviewed de novo. Mixed law and fact issues are also reviewed de novo. CCT v.
Naff, 5 CCAR 50 (1995). In this case, determining the procedures used in addressing motions for
summary judgment (MSJ) is an issue of law; the question of whether the facts in the record are sufficient
to support the Trial Court’s rulings on the MSJ’s is a mixed law and fact question. Therefore, all of the
issues will be reviewed de novo.
ISSUES: What is the standard for such motions, and what are the procedures to follow?
We have already set out the standard for MSJ motions in Peone v. CCT, et al., 15 CCAR 19
(2021), in which we stated:
The accepted standard for ruling on motions for summary judgment is whether there is
any genuine issue of material fact that supports going forward with the cause of action.
The moving party has the first burden of proof on this issue, with deference given to the
non-moving party. The burden then shifts to the non-moving party if the moving party
has established sufficient argument to grant the motion. The Court reviews all the
pleadings filed at the time, including briefs and legal memoranda on the issue of genuine
issues of material facts.
As informative as the non-tribal law was in both briefs, we need not look elsewhere when this
jurisdiction’s laws have already answered the question. We hold that the standard and procedures for such
reviews are already established.
ISSUE: Did the Trial Court err in applying those standards?
Appellant asks this Court to find the Trial Court erred in its determination that his MSJ be
dismissed. He asserts there is a genuine issue of material fact. He seems to make a circular argument
when he posits “Upon finding that Moulton had failed to satisfy his burden of proof as to the facts being
undisputed, the court effectively acknowledged that Colville Fuels’ facts were disputed as well.”
Appellant’s Brief at page 5.
First, the Trial Court made an extensive review of hundreds of pages of discovery submitted by
both parties before making its decision to grant Appellee’ Motion to Dismiss. We have also reviewed all
the documents, de novo. Appellant was terminated based on fourteen allegations of breach of contract.
The record sets out each allegation in minute detail. It also sets out, in minute detail, all of the reasons
Appellant disputed these claims.
We are not going into details of each of the claims. They were covered thoroughly by the Trial
Court. Appellant bases his assertion that his MSJ should not have been dismissed because there was a
genuine issue of material fact as to the scope of his employment requirements, and as to what weight or
credibility should be given to a Board member’s testimony in his deposition.
Appellee goes in great detail on the different bases for each allegation of breach of contract. This
information was provided to the Trial Court as well. Appellee argues That Appellant failed to assert his
termination was on grounds that were arbitrary, capricious or illegal. He argued his dismissal was
politically motivated but, Appellee asserts, he did not provide evidence to the Trial Court to substantiate
this claim.
Appellant wants this Court to grant him an opportunity to go forward with his claims based on his
assertions that he was wrongfully terminated and the Trial Court, by entering findings of fact, ignored his
allegations of genuine material facts. The Trial Court did, after reviewing all of the record, find that
Appellant ‘failed to provide...’specific facts’ supporting his claim.” Order Denying Petitioner’s Motion for
Summary Judgment, at page 3. The Trial Court did assess the MSJ’s under the standards and procedures
established in Peone, supra.
Our review of the record supports a finding that there is no substantial evidence offered by
Appellant to support his assertion of wrongful termination. We held in Peone, supra, that “[a]ssertions
alone are insufficient to meet his burden of proof.” This is true of Appellant’s case herein, too.
Finally, perhaps some of the confusion in the Trial Court’s order is semantical. When the Trial
Court entered the order on cross-motions for summary judgment, it acknowledged the correct standard for
granting Appellee’s MSJ, and for denying Appellant’s MSJ,. It just didn’t specifically say Appellee’s MSJ
was granted before dismissing the case.
We hold the Trial Court applied the correct standards for reviewing the motions for summary
judgment, and the record supports its findings and affirm its decision. There is no genuine material issue
of fact, as a matter of law regarding Appellant’s termination from employment. We further hold the matter
shall be remanded to allow the Trial Court to amend its Order Denying Petitioner’s Motion for Summary
Judgment to include language regarding Appellee’s Motion for Summary Judgment.
It is so ORDERED.
Sharon MOSES, Appellant
vs
Frankie GEORGE and Jose RIVAS, Appellees
Case No. AP24-001, 8 CTCR 33
16 CCAR 18
Trial Court Case No.CV-OC-2024-47050
Decided June 3, 2024
Before Chief Justice Anita Dupris, Justice Hunter Abell, and Justice Cynthia Jordan
Dupris, CJ
SUMMARY
This matter came before the Court of Appeals on an Appeal filed on March 22, 2024 by
Sharon Moses, Appellant, against Frankie George and Joseph Rivas, Appellees. Appellant,
appearing pro se, initially filed an Interlocutory Appeal; upon review we found that the Appeal is
of a final order, and designated it an appeal of a final judgment.
The grounds for Appeal are under COACR 4-2 (g, f, and h), error of law, that the decision is
contrary to the law and evidence, and that substantial justice has not been done. The Trial Court, in its
order of March 14, 2024, entitled "UCCJEA Order RE: Jurisdiction (Dismissal Order) found cause to
dismiss Appellant's Petition for Custody based on the UCCJEA, a federal law that is applied in State
Courts, and held jurisdiction under the UCCJEA rests with the - Yakama Tribal Court.
At the Initial Hearing on May 17, 2024 we found, as a matter of Colville Tribal law, the
UCCJEA is not applicable to cases before the Colville Tribal Court, and, therefore, the Trial
Court committed an error of law in so applying it, and we reversed and remanded the case to the
Trial Court for conformance with our laws. Our decision is based on the reasoning set out below.
ISSUE
Does the Colville Tribal Court have UCCJEA jurisdiction over the case herein as a matter of law
when the UCCJEA does not apply on the Colville Reservation?
STANDARD OF REVIEW
The issue before the Court is a legal one. We apply the de novo standard of review. Naff v. CCT,
2 CCAR 50 (1995).
DISCUSSION
Procedural Facts
On August 29, 2023 Appellant filed a Custody Petition and Temporary Orders request in
the Colville Tribal Court (CCT Court) alleging her three minor children were being withheld
from her and that their domicile is with her on the Colville Reservation. All the minors and
Appellant are Colville tribal members.
The CCT Court set a Show Cause on Appellant's requests for September 8, 2023.
Service was attempted on Rivas, the father of two of the minor children, of the August
29, 2023 petition and temporary orders motion. Appellant stated it was returned as being refused
on October 7, 2023.
Appellee George filed for temporary guardianship along with a petition for guardianship
in the Yakama Indian Nation Court (YIN Court) on September 18, 2023. The YIN Court granted
her ex parte orders of temporary guardianship.
The YIN Court also found it has exclusive jurisdiction to hear the matter. No notice was
given to Appellant on the temporary order of guardianship ex parte. The document alleges no
service as "unknown." For Appellee Rivas , Appellee George stated in the document: "he is
aware."
CCT Court set a Show Cause hearing on Appellant's August 29, 2023 requests, at which time,
the CCT judge directed that all parties, including the children were to be present.
The next CCT order of October 19, 2023 set the matter for a custody trial on January 9, 2024.
All parties failed to appear. An Order of January 31, 2024 states the Motion to Dismiss was granted, and
the matter was dismissed. It does not state who made the Motion to Dismiss
In November, 2023 Appellant contacted the YIN Court and was told about the temporary orders,
of which she had no notice. She was served certified notice on December 21, 2023 that the hearing was
set for February 13, 2024 in the YIN Court.
Both Appellant and Appellee George appeared for the hearing in the YIN Court on
February 13, 2024; Appellee Rivas did not.
The YIN Court found Appellee George established her case by clear, cogent and convincing
evidence that it would be in the best interests of the children for her to have guardianship; the judge
found further that Appellant's evidence was not credible, i.e. that she was now stable enough to take care
of her children and was working on what she needed to do.
Appellant filed a Petition for Custody in CCT Court on February 26, 2024 alleging, inter
alia, the children are enrolled in Colville Tribes; she is a member of the Colville Tribes; the
children were withheld from her for over a year; the father has an active Colville Tribal domestic
violence warrant, and is being investigated for sexual abuse of her niece. She alleges he has
contact with her minor children.
She further alleges her children are domiciled with her, but have not been returned to her. Finally,
she alleges the George home has seven children, including three boys, and all the children share
the same room (We assume she means bedroom).
On February 26, 2024 the CCT Judge denied Appellant's motions for temporary orders and set a
"judicial conference with the court of the Yakama Indian Nation, for hearing on the issue of jurisdiction
between the Colville Tribal Court and the Yakama Tribal Court." Upon questioning at the Initial Hearing
on May 17, 2024, both parties stated they were not allowed to be present at the phone call hearing
between the Colville and Yakama judges on the issue of jurisdiction.
On March 12, 2024 the Colville Judge entered an Order: UCCJEA ORDER RE:
JURISDICTION (DISMISSAL ORDER). [UCCJEA Order].
The UCCJEA Order finds that the matter was "voluntarily dismissed" from the CCT
Court, attended by both parties in the YIN Court and litigated there; that the YIN Court has
jurisdiction; and that the CCT declines jurisdiction and dismissed the CCT case. It is from this
Order Appellant filed a timely Appeal on March 22, 2024.
In her Appeal Notice Appellant states she did not understand it was a jurisdictional issue, and that
she disagrees with the CCT Court ruling in the UCCJEA Order regarding YIN jurisdiction. She has
raised an important jurisdictional issue before this Court. UCCJEA does not apply in cases before the
Colville Tribal Courts
In Tupling v. Kruse, 13 CCAR 41 (2017), we specifically held that the UCCJEA was not adopted
legislatively by CCT, and that this Court does not legislate, so it was not applicable to cases before our
Courts. Tupling is the controlling law on UCCJEA.'
The only other case in which the UCCJEA was mentioned in our Court was in In Re S,L., Cd'A
Tribe. v. S.L.,R.L., CCT, AP13-019, 11 CCAR 62 (2014), in which the Trial Court held the UCCJEA
applied, but the issue brought before us was not the UCCJEA but an Indian Child Welfare issue. This
case is not relevant herein.
In Tupling the father, Tupling, was an Indian member of a Canadian tribe; the mother was non-Indian,
and they were not married. They resided on the Colville Reservation for a period of time during which
time Kruse filed for and received a temporary restraining order (TRO) in Okanogan Court against
Tupling alleging domestic violence. September 10, 2013, the day after receiving the TRO she moved to
the west side of the State with her minor child.
Several petitions and requests for temporary orders ensued in Colville Tribal Court,
Okanogan Superior Court, Island County Court and Snohomish Superior Court. Kruse filed in
Okanogan and Snohomish; Tupling filed in the CCT Court, Okanogan, Island, and Snohomish
Courts. Kruse filed for custody in Snohomish Superior Court on September 18, 2013.
Tupling filed a Petition for Custody on September 10, 2013 in Tribal Court but did not inform the
Tribal Court of the Okanogan Court's TRO; he did not serve Kruse the Petition until April 21, 2014. The
Tribal Court, even though there was no proof of service on Kruse, held at least two hearings on Tupling's
request for ex parte temporary orders, and granted him temporary custody, and issued a pick-up warrant
for the minor.
Tupling filed registrations of a foreign order in Okanogan County Court, Island County
Court (where Kruse first lived when she moved to the west side of the State), and Snohomish
Superior Court, where Kruse was living with her minor child, basing his requests on the
UCCJEA, R.C.W. Chapter 26.27.
In May, 2014, the Snohomish Superior Court found it had concurrent jurisdiction with the
Colville Tribal Court and reserved ruling on primary jurisdiction until it held a UCCJEA conference call
with the Colville Tribal Judge. The jurisdictional issue raised was which Court, Okanogan (first Court),
CCT Court, Island County Court, or Snohomish Superior Court, had jurisdiction over the custody matter.
The judges of the CCT Court and the Snohomish Court conferred under the auspices of the UCCJEA
and concluded that the Snohomish Superior Court was the more convenient forum; the CCT Court
declined jurisdiction and dismissed the case.
We found that Washington's UCCJEA recognized tribes as "states" for the purpose of
determining jurisdiction over mutual custody cases. The Washington UCCJEA is modeled on the federal
UCCJEA statute which directs the States to consider tribes as states for the purpose of determining
jurisdiction. It does not require tribes to adopt it.
We held that the UCCJEA does not apply in our Courts in that the Tribes has not adopted the
requisite statute. We further held, that in this case it was harmless error in that CCT§1-1-144, Means to
Carry Jurisdiction Into Effect. gave the Trial Court the ability to fashion a suitable procedure in the
absence of a statute when the interests of justice are served. We affirmed on this ground instead of the
UCCJEA.
Justice Bass wrote a strong dissent, basically disagreeing with the majority's finding that it was
harmless error to accept the findings of the Trial Court under UCCJEA. He set out the extensive history
6
of the UCCJEA. He posits that if the UCCJEA does not apply in our jurisdiction, we should have held
the judgment of the Trial Court should have been void ab initio, that is from the beginning. He makes a
compelling argument that in establishing a harmless error standard we ignore the plain law that Court's
do not legislate, the Colville Business Council, our legislative/executive branch does.
In hindsight we are inclined to agree with Justice Bass's basic reasoning on the
nonapplicability of UCCJEA. We should have remanded with instructions to decide under our
laws. This is a clearer and truer statement of what the law should be in cases such as this.
In this case, the matter was first filed in the Colville Tribal Court. The children are CCT
members, and in S,L., Cd'A Tribe. v. S.L.,R.L., CCT , 11 CCAR 62 (2014), we ruled that the
domicile of a child follows the unmarried mother.
In Tupling, supra, we referred to the case of Carson v. Barham, 7 CCAR 17 (2003). In
Carson, with no reference to the UCCJEA, the Trial Court conferred with a Spokane Judge on
which Court should exercise jurisdiction, and ruled the Spokane Court should under the"first to
file" rule. Carson does not apply to the facts in this case.
We do not know the process of the Yakama Tribal Court, whether they have adopted the
UCCJEA, what was considered when it found it had exclusive jurisdiction over the Colville
member minors; it's Order establishing guardianship does not reflect if it considered that the case
was first filed in the Colville Tribal Court (which is usually an issue addressed in a UCCJEA
hearing).
We do not make any findings that would direct the Yakama Tribal Court on how to
handle its case in the future. We do find that our Colville Tribal Court erred in its decision to
apply the UCCJEA to its decision of a custody action first filed in our Courts and not considering
the laws of our Tribes. We have several cases addressing custodial issues and jurisdictional
issues. We direct the Trial Court to consider our laws in making its decision, and not a federal
law not enacted or applicable in our jurisdiction.
Conclusion
In conclusion, we hold the Trial Court committed an error of law by adopting
the UCCJEA without the authority of a statute of our laws, and REVERSE and
REMAND to the Trial Court for actions that comports with the laws of our Tribes.
It is so ORDERED, and this matter is REVERSED and REMANDED to the
Trial Court for actions consistent with this Order
Done June 3, 2024
Shania LAWRENCE, Appellant
vs
Edward STENSGAR, Appellee
Case No. AP24-008, 8 CTCR 34
16 CCAR 24
Trial Court Case No. CV-DR-2019-42223
Trial Court Case No. CV-CU-2018-41181
Decided October 28, 2024
Before Chief Justice Anita Dupris, Justice Jane Smith, and Justice Theresa Pouley
Dupris, CJ
This matter came before the Court for an Initial Hearing on October 18, 2024. Appellant
Lawrence appeared in person and through a spokesperson, Michael Humiston, who appeared
by telephone. Appellee Stensgar appeared in person and through his spokesperson, Andrea
George. Appellant based her Appeal on three bases: 1) that the Trial Court erred in failing in its
amended Final Parenting Plan and Order to include a requirement for Appellee to attend a
domestic violence treatment course; 2) that the Trial Court erred in finding that a substantial
change of circumstances occurred that resulted in an amended Final Parenting Plan; and 3) that
the Trial Court erred in denying a protection order based on the allegations of harassment and
allegations of physical abuse of the parties' minor child.
The parties were informed at the Initial Hearing that one of three things could happen.
First, the Court could find that no appealable issue was stated and the matter would be
dismissed; or second, that we could find there is an appealable issue, and set the matter for
briefing. Finally, we could find, as a matter of law, that an obvious error has been made, and
we would remand to the Trial Court.
In this matter, we found that there are competing Orders from our Trial Court, i.e. the
amended final Parenting Plan and accompanying Order dated August 19, 2024, and the
Protection Order entered by the Lincoln County Superior Court entered September 10, 2024.
The Trial Court orders allow visitation between Appellee and the parties' minor child. Lincoln
County's Protection Order prohibits any visitation.
The third issue on Appeal is of a Protection Order request by Appellant in the Trial
Court. Appellant asserts that it was denied. The ex parte request for the Protection Order was
denied, and the matter was set of a hearing for September 3, 2024. According to the parties,
Appellant requested the hearing be continued to September 10, 2024, at which time the
Lincoln County Court ruled on the Protection Order before it regarding the parties.
According to Appellee's Declaration asking for dismissal and sanctions in this matter,
as well as the parties' statements in the Initial Hearing, the tribal Trial Court judge stayed any
discussion of the competing Orders pending this Appeal. The parties stated the judge was
waiting to have a UCCJEA conference call with the Lincoln County judge. As we ruled in
Moses v. George/Rivas, AP24-001 (June 3, 2024), the UCCJEA does not apply in our
jurisdiction. This would not preclude the judge from talking to the Lincoln County judge
regarding the competing orders; it just precludes any reliance on the UCCJEA and its guiding
policies, which, as we stated in Moses, supra, are statutory and have not been adopted by our
Legislature, the Colville Business Council.
We find that an Appeal on the competing Orders is not ripe for our review. The Trial
Court needs to rule on the issue of which Order, the Trial Court's Order allowing visitation
between Appellee and his minor child, or the Lincoln County Court's Order prohibiting contact,
prevails for these parties. For this reason we remand to the Trial Court to address this issue.
Lastly, Appellee's Motion for Dismissal and Sanctions is denied. First, Appellant made
an obvious scrivener's error in stating March, 2024 instead of September, 2024 in his statement
of certificate of service on his Notice of Appeal. Appellee references Court Rule 3-36 in terms
of timely service on her/her spokesperson. This rule states Appellee should have been served
the Notice of Appeal at or before the filing thereof. Even if we were to accept this as true, we
see no harm on the timeliness of serving the Notice of Appeal on Appellee. All parties and
their spokespersons were present at the Initial Hearing and no one alleged the inability to
adequately prepare for the hearing.
Appellee also asks for sanctions, stating as a basis that all the Court times he is
required to attend are costly. We reminded him that in the prior Appeal he filed in October,
2023, he had filed thirteen motions that had to be brought before the Court. Both of the parties
have asked the Trial Court several times for a review of the case, which necessitated Court
time. Appellee has not met his burden to support sanctions in this case. Based on the
foregoing, now therefore
It is ORDERED that:
1. This matter is DISMISSED as not ripe for review;
2. The case is REMANDED to the Trial Court to make a decision on which of the competing
Orders between the Trial Court and Lincoln County Court prevails regarding visitation between Appellee
and his minor child;
3. Appellee's Motion to Dismiss is DENIED for the reasons he stated; and
4. Appellee's Motion for Sanctions is DENIED.
DONE October 28, 2024
Andrea D. GEORGE, Appellant
vs
Edward P. JURSEK, et al Appellee
Case No. AP24-002, 8 CTCR 35
16 CCAR 27
Trial Court CV-OC-2021-44022
Decided July 15, 2024
Before Justice Mark Pouley, Justice Anita Dupris, and Justice David Bonga
Pouley, CJ
FACTS
Appellant Andrea George is before this Court alleging that multiple tribal Appellees caused her harm
over a long period of years covering numerous interactions. As discussed below, Appellant brought the
same or similar claims in Colville Tribal Court previously. The Court will not recount the
allegations in this matter as Appellant's 102-page amended complaint includes 394 paragraphs
of allegations, names 13 respondents (all past and present tribal employees), and identifies 12
causes of action. In addition to being voluminous, the allegations are at times confusing. The
fact the pleadings cover so many incidents over so much time involving so many parties, in part,
is the basis of the Trial Court's decision to dismiss the complaint and this Court's decision to
AFFIRM that dismissal.
DECISION
As the issues before the Court are matters of law, the standard of review is de novo. Naff
v CCT, 5 CCAR 50 (1995). Appellant complains that the December 23, 2023, Order of
Dismissal, appealed herein, lacks findings and conclusions. While true, this is not a basis to
reverse or remand the decision. When the Trial Court dismisses an action as a matter of law it
ordinarily does not enter "findings of fact." If the matter is dismissed as a matter of law, this
Court reviews the decision de novo. If this Court agrees with the lower court's legal decision, on
any legal basis, it is not required to decide if the Trial Court's legal conclusion was in error.
Here, the Court finds, on the basis explained below, that the dismissal of the case was correct as
a matter of law.
Some of Appellants' claims are based on alleged misconduct occurring in the Colville
Tribal Court, or court filings. Appellant takes issue with how matters were handled, including
the qualifications of a pro tern judge, communications with court staff, sitting judges, and others.
It is impossible to understand how any of Appellant's complaints against the individual judges,
attorneys, or court personnel, assuming the alleged facts are true, give rise to a cause of action
for monetary damages. It is unclear if Appellant's issues would be a basis for appeal, ethics
complaint, or grievance, but there is no legal basis supporting a claim for monetary damages.
The DISMISSAL of all claims against the trial court and its personnel is proper as a matter of
law and is therefore AFFIRMED.
Appellant was previously a member of the Colville Business Council (CBC) and was removed
from that position following an ethics complaint. Appellant brought an action in the Colville Tribal Court
in CV-OC-2019-42026 alleging she was wrongfully removed. Her complaint was dismissed and this
Court AFFIRMED the dismissal in AP21-016. In pertinent part, we held that "separation of powers
prevents our review of the actions of the CBC in their capacity as CBC members." The holding of the
Court is unchanged. Allegations of any wrongful conduct of the CBC, attorneys representing and giving
advice to the CBC and other parties that may have been involved with Appellant's removal and
subsequent bar to running for office may not and will not be reviewed by the Colville Tribal Courts. Even
if Appellant's new filing alleges new or additional claims, the legal bar to bringing the claims remains the
same. The decision of the Trial Court on this matter is AFFIRMED.
Appellant raises two causes of action, "Breach of Contract" and "Breach of the Implied Duty of
Good Faith and Fair Dealing" based on the law of contracts. Appellant does not claim to be a party to the
contracts allegedly breached by the Appellees, nor does her description of the contracts imply this may be
true. Lack of privy bars a claim for breach of contract as a matter of law and the Restatement of the Law
of Contracts, 2d, duly notes that "To state a claim for breach of the implied covenant of good faith and
fair dealing, a plaintiff must generally plead: (1) the existence of a contractual relationship between the
plaintiff and defendant, (2) plaintiff's performance (or excuse from performance) of its obligations under
the contract; (3) that the defendant unfairly prevented the plaintiff from receiving the benefits it was
entitled to under the contract; and (4) injury to the plaintiff as a result of defendant's conduct." Even if
contracts were breached, Appellant fails to identify any legal claim for monetary damages she suffered as
a non-party to the contracts. Additionally, as discussed below, Appellant does not demonstrate how, if
such a claim existed, it would survive the Respondents' sovereign immunity to any action for monetary
damages or the statute of limitations.
Appellant also asserts claims for "outrage", "malicious prosecution", "defamation", "negligent/
intentional misrepresentation and/or omission", "negligent/intentional infliction of emotional distress",
"violation of employment records", and "harassment." The complaint seeks "monetary damages" for her
alleged injury. Appellant brought similar claims in 2017 in cause number CV-OC-2017-40036. Some of
the allegations in this pleading appear to repeat allegations brought in the previous litigation. The Trial
Court dismissed the 2017 action and this Court affirmed the dismissal in AP21-015. We hold here, as we
did in the prior decision, that Appellant's claims are standard tort claims barred by sovereign immunity.
Further, to the extent the claims overlap allegations already brought and dismissed with prejudice by this
Court, they are barred from being reasserted. Additionally, to the extent any claims arose more than three
years before filing of this action on January 28, 2021, they are barred by CTC §2-2-3 statute of
limitations. We previously affirmed the dismissal of the same or similar claims brought by Appellant and
the law has not changed. Dismissal remains appropriate and the Trial Court decision is therefore
AFFIRMED.
It is well established that the Colville Confederated Tribes, as a sovereign, may not be sued
unless it waives its sovereign immunity. In addition, the Tribes may limit any such waiver to specific
claims and remedies. CTEC v. Orr, 5 CCAR 1, at 4 (1998). The Colville Civil Rights Act provides a
limited waiver of sovereign immunity, and this Court has reviewed permissible claims and remedies
allowed by the waiver numerous times. We do so again in this case.
In her attempt to justify a claim for monetary damages, Appellant's amended complaint alleges
violations of her "civil rights" under CTC§1-5. To the extent Appellant's claims arise from any of the
Appellees' actions relating to her removal from the CBC, the Court already held separation of powers
bars our consideration of the claim. To the extent Appellant's claims arise from improper court action, the
Court already held there is no cause of action for challenges to court authority or decisions. To the extent
Appellant's claims allege violations of civil rights described in §1-5-2, monetary damages may only be
considered if the Court determines that injunctive or declaratory relief will not sufficiently address the
damages suffered. CTC §1-5-8. Appellant did not seek injunctive or declaratory relief or allege such
relief is insufficient to address her claims. There is extensive precedent in this Court examining the
limitations of monetary relief available under CTC§1-5-2. It is well-established that Petitioners may not
"bootstrap" otherwise barred tort claims by making bare assertions those claims rise to the level of "civil
rights violations". The Court has rejected these efforts in the past, even by this same litigant, and will not
change that precedent in this case. Dismissal on the grounds the Appellees are immune from suit seeking
monetary damages is AFFIRMED.
Appellant attempted to avoid the bar of sovereign immunity by captioning her complaint against
the Appellees "in [their] individual and official capacity." This Court will not discuss whether suits
brought against tribal employees in their individual capacity avoids tribal sovereign immunity. Instead,
the Court will examine Appellant's failure to properly plead the case that any of the Appellees acted in
their individual capacity. It was clear to the Trial Court that Appellant's complaint lacked sufficient clarity
and specificity to support claims against the various Appellees in their individual capacities. By order
dated October 18, 2021, Appellant was given the opportunity and directed to amend the complaint to
specify "which acts of any Respondents that are alleged to have been done in their individual capacity,
rather than in their official capacity. If there is no specific allegation of acting in their individual capacity,
the Court will deem the allegation to have been done in their official capacity." Appellant's second
amended complaint filed March 9, 2022, fails to address this deficiency' so this Court considers all
alleged conduct to be performed in the Appellees' official capacity and claims for monetary damages are
barred by sovereign immunity.
As the Petitioner, Appellant is solely responsible for the pleadings filed and must present facts
and legal claims supporting the requested relief. In drafting allegations of a complaint to avoid dismissal
for failure to state a claim, it is not enough for a pleading party to merely mention a possible argument in
the most skeletal way, leaving the court to do counsel's work, creating the bare structure of an argument,
and putting flesh on its bones; rather, the petitioner has an affirmative responsibility to put her best foot
forward and present a legal theory that supports her claim. See, Kell v. American Capital, 278 F. Supp. 2d
156 (2003). The Court agrees with the Appellees' characterization of the pleadings, "The complaint reads
like a disconnected narrative of various grievances, anecdotes, and episodes with no central or shared
common nucleus of fact or law, other than Petitioner's presence." While pleading rules must not create
barriers to litigants seeking and obtaining remedies for wrongs they have suffered, all pleadings must be
sufficiently clear to notify the respondents of the claims raised, the applicable law, and the defenses they
may assert. A scattershot or "shotgun" style of pleading fails to meet this requirement. The amended
complaint is as incomprehensible as the complaint challenged in October 2021 that the court directed
Appellant to amend. The original complaint and the amended complaint prove that "more" is not
necessarily better. The Trial Court's order of October 18, 2021 instructed Appellant how she might save
her pleadings from dismissal. She failed to meet the Trial Court's directions. Both complaints fail to
properly state a claim for which any relief may be granted and this Court refuses to redraft the pleadings to determine if any
claims should survive dismissal.
Appellant received substantial due process to air her grievances inside and outside the tribal justice system.' The fact she is
dissatisfied with the resolution of the grievances is not a legal justification for continuing to bring those claims before this Court. In the
Colville Courts Appellant previously filed two actions that were considered and dismissed by the Trial Court and the Court of Appeals.
The claims before this Court in this action overlap those prior claims, at least in part, both factually and legally. As this Court noted
before Desautel v. Dupris, et al, 11 CCAR 6, 11 (2011) "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 hopes of wearing the other side down."
Dismissal of this case by the trial court as a matter of law was proper and is AFFIRMED. It is so ORDERED.
DATED July 15, 2024
______________________________
' Other than adding party names to some of the paragraphs, the amended complaint offers no specific allegations that establish
any Respondent acted in their individual capacity.
Reginald GEORGE, Jr., and Andrea D. GEORGE, et al Appellant
vs
Darnell SAM, et al Appellee
Case No. AP24-003, 8 CTCR 36
16 CCAR 32
Trial Court CV-OC-2022-45038
Decided August 23, 2024
Before Chief Justice Anita Dupris, Justice Mark Pouley, and Justice Donald Colistro
Dupris, CJ
SUMMARY
This matter came before the Court of Appeals upon an Notice of Appeal filed on June 18, 2024 by
Reginald George, Appellant (Appellant) against several named Appellees set out above. Appellant
appeals a final order of the Trial Court dated May 21, 2024 in which the Trial Court dismissed the case
based on several grounds. The Trial Court held that two of the respondents were dismissed as parties
because their actions were as witnesses and did not form a basis for a claim under Appellant's complaint.
The Trial Court also dismissed the case against all of the tribal employee-respondents on the grounds of
sovereign immunity, and dismissed the case against the Judge and Court Clerk on the grounds of
sovereign immunity and "absolute judicial immunity." The Trial Court ruled there was no violation of the
Tribes' Civil Rights Act, CTC , Chapter 5 as there were no materially disputed facts and that Appellant
failed to state a claim upon which relief could be granted.
The Initial Hearing was held on August 16, 2024. Appellant Reginald George appeared in person
and represented by his Spokesperson, Andrea George. The Appellees, except for Darnell Sam and Jodi
Sam, were represented by their Spokesperson, Christopher Kerley. Darnell Sam and Jodi Sam did not
appear.
Based on the reasoning below we affirm the dismissal of all of the respondents in their individual
and official capacities except the respondent Colville Tribes. We find cause to remand the matter to the
Trial Court to address the substantive issue raised by Appellant regarding applying the Washington State
statute, RCW 7.94', the Extreme Risk Protection Order (ERPO).
DISCUSSION
At the Trial Court level both parties argued in depth why the ERPO should and should not have
been issued. Appellant argued, inter alia, it violated his tribal civil rights to due process and equal
protection, and that the Court adopted and enforced a statutory law of Washington State, one that does
not have a counterpart in tribal law. Appellees argued that the Court has interpreted and enforced statutory
protection orders in other types of cases, and that CTC Section 2-2-102 allows looking to state law in the
absence of tribal law.
The issue of whether the Trial Court should adopt a statutory law of the State of Washington
under our applicable law statute, CTC 2-2-102, in the absence of a tribal statute for the ERPO is an
important one to address. A question arises in whether CTC 2-2-102 can be used to incorporate a
state statute that has a very distinct legislative history for the State of Washington without our
legislative body's own development of its policy on the issue of what types of protection orders the
Tribes should allow in similar circumstances.
We acknowledge that the underlying cause of action — or actions — herein that challenge
the issuance of the ERPO are a collateral attack on the cause of action that initiated and adopted the
State's ERPO procedures. That is, there may be a question of whether the challenge should have
taken place and appealed under the original cause of action in which the ERPO was issued.
The Trial Court made a correct assessment regarding dismissing the individual Appellees in their
individual and official capacity. The Trial Court did not answer an important question, however, that may
or may not have affected the due process and equal protection rights of Appellant by the issuance of the
ERPO. The applicability of the State's ERPO statute in Tribal Court is one of first impression.
__________________________
RCW 7-94 et seq. was superceded in 2021, and the relevant section regarding Extreme Risk Order of Protection was
incorporated in RCW 7.105.330.
For these reasons we AFFIRM the Trial Court's rulings dismissing all of the Appellants
except the Tribes, and we REMAND to the Trial Court to address the issuance of the ERPO.
It is so ORDERED.
Done August 23, 2024.
Edward Stensgar, Appellant
v
Shania Lawrence, Apellee
Case No. AP23-010, 8 CTCR 34
16 CCAR 34
Trial Court CV-CU-2018-41181
Trial Court CV-DR-2019-42223
Decided November 6, 2023
Before Chief Justice Anita Dupris, Justice Jane Smith, and Justice Theresa Pouley
Dupris, CJ
This matter came before the Court for an Initial Hearing on October 20, 2023. Appellant, Edward
Stensgar, appeared in person and pro se. Appellee Shania Lawrence, appeared in person and with her
Spokesperson, Victoria Minto. The Court explained the purpose of an Initial Hearing to the parties,
and further explained to Appellant why a number of his appeal requests were not matters to be heard
by this Court.
Specifically, Appellant was told that the following requests in his Appeal Notice were not
properly before the Court of Appeals: 1) to appoint a new judge; 2) to allow the minor in question to
"go to Reardon"; 3) to make a new parenting plan to accommodate both parents' residency; 4) to
appoint a guardian ad litem; and 5) to add Appellant's wife as a co-parent for school purposes. All
these requests are issues to be addressed first by the Trial Court.
The Order appealed was signed by Judge Kelley on August 29, 2023 in which the Judge
denied Appellant's Motion to Modify the Parenting Plan. The final Parenting Plan was entered by the
Court in February, 2020. Appellee's Spokesperson stated Appellant has filed 13 motions to modify
the final parenting plan of February, 2020. The Order sets out some of the several motions, noting
that several related to visitation issues; one was not addressed because Appellant's spokesperson was
no longer a member of the Tribal Court Bar.
Procedurally this case started with a Petition for Custody filed by Appellant under Case
Number CV-CU-2018-41181. The Judge entered an Order on March 13, 2019 which did not dismiss
the Custody case; it stated the parties were working together on an agreement regarding custody, and
any further action was to be brought before the Court by a motion.
On September 30, 2019 the Trial Court entered a Domestic Violence Protection Order for
Appellee and against Appellant. On February 20, 2020, after several motions and hearings on the
motions, the Trial Court entered a Final Parenting Plan under the Domestic Violence case, CV-
DR-2019-4223. More motions ensued.
The Trial Court's Order of June 1, 2021 addressed Appellant's motion to modify the
February 20, 2020 Final Parenting Plan' order. The Trial Court, in this Order, recognized that the
issues in both CV-DR-2019-42223 and CV-CU-2018-41181 were now the same, and issued an
order combining the cases. The Court found further in its June 21, 2021 Order that the
Respondent/Appellant herein did not provide evidence that a substantial change of circumstances
occurred pursuant to CTC §5-1-26, and denied the request to modify the original parenting plan.
The Court held the same in its August 29, 2023 Order, that is, no substantial change in
circumstances to merit a modification of the Permanent Parenting Plan of February, 2020.
Appellant must show more than mere allegations of what he considers a substantial change of
circumstances to support a modification.2
A review of the record and Order appealed in this case supports the Trial Court's
findings. Our review is not original; we look at the Trial Court's ruling under the standard of
whether it is reasonable within the law. We do not substitute our opinion for the Trial Court's.
Based on the above we find there is no applicable issue, and AFFIRM and REMAND for
actions consistent with this Opinion.
Done November 6, 2023.
_______________________________
2. Appellee is concerned of how often Appellant files Motions to bring the matter back into the Trial Court
so often. That is an
issue that needs to be addressed first by the Trial Court in its responsibility to administer its calendar and cases.
1
. It is noted that a custody order was never issued under the original case, CV-CU-2018-41181; rather the case was joined with
the domestic violence case, in which one of the many judges who heard parts of the case found cause to enter a Permanent
Parenting Plan which addresses the custody and visitation issues. It is this Plan that forms the basis of this Appeal.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.