Oscar MELLON, Appellant,

Tribal code

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Text

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

AP02-015, 4 CTCR 17

8 CCAR 01

[Michael Larsen and Neil Porter, Colville Tribal Public Defender’s Office, for Appellant.

David Ward, Office of Prosecuting Attorney, for Appellee.

Trial Court Case Number CR-2001-24221]

Argued April 18, 2003. Decided January 12, 2005.

Before Chief Justice Anita Dupris, Justice Edythe Chenois and Justice Theresa Pouley

Dupris, CJ

PROCEDURAL HISTORY

On September 14, 2001 the Appellant was charged by an amended complaint with the

criminal charges of: Count I, Fraudulent Credit Card Use, CTC § 3-1-49; Count II,

Embezzlement, CTC § 3-1-43; Count III, Misuse of Public Funds, CTC § 3-1-131; and Count IV,

Theft, CTC § 3-1-55. All four charges were based on the same eight allegations of the

Appellant’s use of a VISA credit card on the Tribes’ credit line, issued to him while he was a

member of the Colville Tribal Business Council (CBC).

The Trial Court dismissed the charge of Theft in a pre-trial order dated February 11,

2002, upon a motion of the Appellant. The Trial Court denied the Appellant’s Motions to

Dismiss the other charges in the same order, and further held it had jurisdiction over all of the

alleged incidents, including four in which the Appellant used the credit card off the Colville

Reservation (Reservation).

The Appellant was found guilty of Fraudulent Credit Card Use and Misuse of Public

Funds, and not guilty of Embezzlement by jury trial on June 20-21, 2002. He was sentenced on

the two charges, i.e. Fraudulent Credit Card Use and Misuse of Public Funds on August 1, 2002.

He filed his Notice of Appeal on August 2, 2002, initially raising eight (8) separate issues

for appeal. In his Opening Brief filed on February 28, 2003 the Appellant withdrew three of the

issues: (1) whether the Trial Court erred for denying to dismiss the charges of Fraudulent Use of

Credit Card and Misuse of Public Funds for insufficiency of complaint; (2) whether the Trial

Court erred in the jury instructions used; and (3) whether sentencing the Appellant consecutively

for multiple charges arising from the same factual conduct constituted double jeopardy.

The issues remaining for oral arguments, held on April 18, 2003, were: (1) whether the

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Trial Court erred for failing to dismiss the charges based on incidents occurring off the Colville

Reservation for lack of jurisdiction; (2) whether the Appellant’s due process rights were violated

based on the allegation he was not given adequate notice that he could be prosecuted for crimes

relating to his credit card use; (3) whether the Appellant was wrongfully charged with general

and specific crimes based on the same factual conduct; (4) whether the Trial Court erred in

sentencing the Appellant to, inter alia, two years of probation; and (5) whether the Trial Court

erred in granting the Appellee’s Motion to Strike the Deferred Prosecution initially offered by the

Prosecution, then withdrawn.

Based on the reasoning below we affirm the Trial Court.

DISCUSSION

In his Opening Brief, the Appellant quotes one of our most respected ancestors,

Christine “Mourning Dove” Quintasket, stating “Honesty and personal integrity is [sic] an

important attribute of American Indian life and is a documented part of the Tribes’ historical and

cultural tradition.” See Appellant’s Opening Brief, page 17.

He goes on to say, “Tribal

members have a right to expect that when their public officials speak, that their pronouncements

will be more than mere words, and that those words will be honored.” Id. These principles do

speak to our customs and traditions, our organic laws, and should guide this Court in its decision.

STATEMENT OF FACTS

Appellant Oscar Mellon was elected to the Colville Tribal Council in 1999 as a

representative from the Keller District.1 He ran again when his term was up in 2001 but was not

re-elected. In July, 1999 he was sworn in, taking an oath of office. After he was sworn in, he

was issued a VISA credit card on a tribal account with Coulee Dam Federal Credit Union. The

Authorized User Request Form the Appellant signed authorized him to use the credit card for

business and travel-related expenses directly tied to his position as a Council member. He agreed

to be responsible for the charges on the credit card; the Colville Confederated Tribes (Tribes)

was designed as the “co-owner or Trustee,” and thus was also designated to be responsible for

the charges to the card.

On about July 11, 2001 the Appellant reported that he had lost the VISA card in question

around July 8, 2001. The Appellant left the office of Keller Councilman on July 15, 2001. The

The Colville Tribal Council is comprised of fourteen members elected from four (4) different districts designated in the Colville Tribal

Constitution: Nespelem, Omak and Inchelium districts have four representatives each; the Keller district has two representatives.

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Tribes received information that the Appellant used the credit card he reported as lost for

personal purposes after the date he reported it lost and both while he was still on the Council and

off the Council.

After an investigation the Tribes brought the criminal charges herein, alleging facts based

on eight of the several different incidents in which the Appellant used the credit card for personal

purposes.2 The eight (8) credit card uses by the Appellant which formed the basis of the

criminal charges against him include four (4) gas charges at the service station in Nespelem,

Washington, which is on the Colville Reservation; two (2) gas charges at a service station off

the Reservation in Coulee Dam, Washington; and two (2) cash advances totaling $842.98, taken

at the Two Rivers Casino, which is off the Reservation. All eight incidences occurred between

July 6-15, 2001.

At the jury trial on Jun 21, 2002 the jury found the Appellant not guilty of Embezzlement,

and guilty of both Fraudulent Credit Card Use and Misuse of Public Funds. The Trial Court

sentenced him consecutively on both charges on August 1, 2002 to the following: (1) $10.00

court costs; (2) a $5,000 fine with $4,000 suspended on conditions; and (3) 360 days in jail with

270 suspended, with some of the time to be served on electric home monitoring. The conditions

of the suspended portion of the sentence were ordered to be in effect for two (2) years from the

time of the sentencing, the length of which is being challenged on this appeal. The Appellant

filed a timely appeal on August 2, 2002.

ISSUES

The issues we will address herein are:

Did the Trial Court err when it found jurisdiction over the crimes which included actions

the Appellant took off the Reservation regarding credit card use?

Was the Appellant’s right to due process violated because Resolution 1999-395 failed to

give him adequate notice that if he violated the policies of the Resolution he could be

subjected to criminal charges?

Did the Trial Court err in granting the Appellee’s Motion to Strike the Deferred

Prosecution agreement initially submitted by both parties?

Did the Trial Court exceed its authority by sentencing the Appellant to conditions to be in

In his Order on Pre-Trial Motions dated February 11, 2002, the Judge found that the Appellant was not being selectively prosecuted (which is

not an issue before us) because, unlike credit card charges of other Council members, the Appellant’s charges were often not travel-related. The

judge found about eight cash advances the Appellant took from various cash machines at several tribal casinos, both in-state and out-of-state,

totaling in excess of $1,300.00. None of these transactions were made a basis of any of the criminal charges herein.

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effect for two (2) years?3

STANDARD OF REVIEW

All the issues presented are questions of law. We review 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).

1. Did the Trial Court err when it found jurisdiction over crimes

which included actions the Appellant took off the Reservation

regarding credit card use?

The Appellant’s position is that four (4) of the actions he took regarding use of the credit

card took place off the Colville Reservation, thereby depriving the Court of jurisdiction.

Specifically, there were two charges at a service station off the Reservation and two at the

Spokane Tribe’s Two Rivers Casino.

The Trial Court addressed this issue in its Order on Pre-Trial Motions, denying the

Appellant’s Motion to Dismiss, and finding there was jurisdiction. The Trial Court held that

there was sufficient nexus among the Appellant, the credit card given to the Appellant for use

only for tribal business purposes, all of the credit activities being billed to and paid by the Tribes,

and the harm, resulting on the Reservation. Referring to CTC §1-7-70, the Tribes’ general

jurisdiction statute4 the Trial Court found that it was the Tribes’ intent to authorize the Court to

exercise as broad jurisdiction as possible.

Both parties argued whether the incidences in question that took place off the Reservation

The Appellant also identified in his brief an issue of “whether the Tribes unlawfully charged the Appellant with both general and specific

charges for the same factual conduct in violation of CTC 1-1-7(k).” The Appellant made no arguments nor cited any persuasive authority on this

point. CTC 1-1-7(k) states: “When there is a conflict between one provision of this Code which treats a subject in a general way and another

which treats the same subject in a specific manner, the specific provisions will prevail.” This is a tenet of statutory construction and cannot be

“violated” in the sense the Appellant is asserting it. For these reasons we will not address this issue.

“To the greatest extent permissible by law, the jurisdiction of the Tribal Court shall apply to all persons on lands in the North Half and on other

lands where the Colville Confederated Tribes may be authorized to enforce its interests or rights and member asserting rights held by the Tribe

without regard to location.”

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were “essential elements” of the crimes charged. The Appellant argues they are, and because

they occurred off the Reservation the Court did not have jurisdiction. The Appellee urges this

Court to adopt the State of Washington’s statutory approach which includes language of when

the crime is committed in whole or in part within the jurisdiction of the Court. See, State v. Lane,

112 Wash.2d 464, 771 P.2d 1150 (1989).

The facts alleged are not “essential elements” of the crimes charged. The charge of

Fraudulent Use of Credit Card, CTC §3-1-49 reads:

“Any person who shall use a credit card for the purpose of obtaining property or

services with knowledge that the card is stolen, has been revoked or canceled, or

is unauthorized for use, shall be guilty of Fraudulent Credit Card Use.... [which] is

a Class B offense.”

The charge of Misuse of Public Funds, CTC §3-1-131 reads:

“Any person who shall, being a public servant or other person charged with

receipt, safekeeping, transfer or disbursement of public funds, without lawful

authority, appropriate funds to his own use or the use of another, or who shall

otherwise handle public funds in a manner not authorized by law, shall be guilty

of Misuse of Public Funds....[which] is a Class B offense.”

Class B offenses carry a maximum penalty of 180 days in jail, or $2,500.00 fine, or both.

The jury instructions correctly identify the essential elements of each of the offenses. Jury

Instruction 5 sets out the essential elements of the crime Fraudulent Use of Credit Card as:

“a. A credit card was used; or [sic]

b. For the purpose of obtaining property or services; or [sic]

c. The user had knowledge he was not authorized to use it; or [sic]

d. The Tribes had an ownership interest in the card.”

The language in the Jury Instruction tracks the statutory language. Jury Instruction 16 sets out

the essential elements of the crime Misuse of Public Funds as:

“a. A person being a public servant or other person charged with the receipt safekeeping,

transfer or disbursement of public funds; or [sic]

b. Acts without lawful authority, knowing he is without authority; or [sic]

c. The act consists of appropriating these public funds for his own uses.”

Where the acts took place that form the basis of the charges herein are jurisdictional in

nature, and not elements of the offenses charged. Jurisdiction goes to the power of the Court to

hear the matter because the defendant committed the actions that form the basis of the crimes

charged within the jurisdictional boundaries of the Reservation. The question is, where is the

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situs of the crime? The Trial Court answered this question in its Order on Pre-Trial Motions of

February 11, 2002. It held:

“

In this case, the credit card was the credit line of the Tribes. The Tribes is

certainly on the Reservation. Wherever he may have actually used the card, the

harm occurred here. Both the general authorization and the specific limits were

placed here on the Reservation... He was given lawful custody of the card here...

He was a public servant here and was charged with the safeguarding of the funds

here....

There is certainly sufficient nexus with the Tribes for jurisdiction in this case not

to violate due process. He received the card because he was a council member

for the Tribes. The use agreement was entered into here. He received his bills

here. He was given memos from the Tribes [sic] accounting department for

previous charges. He reimbursed the Tribes here. He lives here. He is a Tribal

member.” pp 11-12

The question is not one of finding a “nexus” between the actions off-reservation. The

question, as answered by the Trial Court, is whether the crime “occur” on the Reservation for

purposes of finding criminal jurisdiction. The Trial Court aptly pointed out all the instances in

which the crimes occurred on the Reservation in its findings above. In State v. Lane, 112

Wash.2d 464, 771 P.2d 1150 (1989), The Washington State Supreme Court looked at the

common-law roots of territorial jurisdiction, which required that the crime charged occur within

the boundaries of the State. It said:

“At common law, a state could criminalize an act if the conduct or results

occurred within the state... A concomitant notion, that a crime had only one situs,

limited the territoriality principle.... [T]he situs principle has been expanded, but

conduct within the state is still required. The cases are not to the contrary. The

dispute centers upon how much activity is required and upon whether the conduct

itself must be an element of the crime.” Lane, Utter’s concurring opinion at p 480.

In Louie v. CCT, 2 CCAR 47 (1994) , we found that a complaint had to give sufficient notice of

the specific acts that formed the basis of the crime charged. In Bachand v. CCT, 4 CCAR 23

(1997) we found the defendant received adequate notice of the specific actions he took that

constituted a crime under the statute when the police report was read into the record at the time

the defendant entered a guilty plea. The questions in Louie and Bachand were what constituted

adequate notice of the crimes charged in order to meet due process requirements. In neither case

did we discuss what were the essential elements of the crime that had to occur on the Reservation

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in order to acquire jurisdiction over the actions.

As set out in the jury instructions, the essential elements are set out in the applicable

statute. The complaint gives the Appellant adequate notice of the bases for the crimes charged.

The Trial Court’s duty was to determine, as a matter of law, if the actions occurred on the

Reservation. Its findings are sufficient and we will not disturb them on Appeal.5 We affirm the

Trial Court’s finding of jurisdiction.

2. Was the Appellant’s right to due process violated because Resolution

1999-395 failed to give him adequate notice that if he violated the policies of the

Resolution he could be subjected to criminal charges?

Resolution 1999-395 states:

WHEREAS, it is the recommendation of the Executive Committee that individual

Council members owing reimbursement(s) for Council Travel will receive written

notice with copies to the Council Secretaries, Accounting Supervisor and CBC

Chairman. The reimbursement(s) will be paid within (10) working days, unless

reimbursement to be made by another Agency/Organization. No travel will be

approved until the reimbursement is made. Any travel dispute(s) will be resolved

through CBC Secretaries, Accounting Supervisor or individual CBC and

individual Executive Committee Member(s)....

The Appellant argues that he relied on the practice developed under the Resolution in his past

actions regarding use of the VISA card in question. Ample evidence was presented to the Trial

Court to show that he used the VISA card for non-travel-related expenses (see footnote 2, supra)

without criminal consequences before. He further argues that the Resolution has the same force

and effect as the criminal statutes, and supersedes the statutes in that it provides a more specific

law for Council members to follow regarding personal use of the tribal credit card which

“preempts application of criminal sanctions.” Finally, Appellant argues the Resolution

“vitiates” the criminal statutes, and, as an extra-judicial method of dealing with Council

members, cannot be subject to prosecutorial interference, and as interpreted by past practice, does

not give the Appellant adequate notice that he could be subject to criminal sanctions, in violation

The question of whether the actions occurred on the Reservation would involve questions of fact only if the defendant raised an affirmative

defense, alleging the actions didn’t occur as alleged in the complaint. That is not a question in this case. The record doesn’t reflect that the

Appellant denies he charged gas to the tribal VISA card off the Reservation nor that he charged cash advances at the Two Rivers Casino. His

defense was that he mistook the tribal card for his personal card. The jury did not accept this defense, apparently, because it found him guilty. It

is not being challenged in the Appeal herein, so we will not review the jury’s decision on that basis.

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of his due process rights.

Although long on argument, the Appellant is short on reasoning, and cites no credible

authority for these premises. It is a long-recognized tenet that one has notice of what constitutes

a crime when one enters a jurisdiction. The Appellant was in the unique position of being one of

the law-makers for the Tribes. He took an oath to uphold the Constitution and laws of the Tribes.

His argument that misusing a tribal VISA credit card for personal use, at several tribal casinos,

and at a gas station is a privilege and right of a Councilman is disingenuous. At the best, his

reliance on not being prosecuted because he was a Councilman was seriously misplaced.

At the very least, the Council has a Constitutional duty not to enact policies that would

violate the laws of the Tribes. The language of the Resolution and the actions of other

Councilmen under the facts herein do not support the Appellant’s argument. It is clear from the

language that the VISA was to be used for business purposes. The jury found the Appellant

misused it. Not only is it against the laws of the Tribes, but he took an oath to act ethically while

in office as Councilman. As he stated in his brief: “Tribal members have a right to expect that

when their public officials speak, that their pronouncements will be more than mere words, and

that those words will be honored.” We affirm the Trial Court’s holding that the Appellant’s due

process rights were not violated. His reliance on the cloak of the Resolution was unfounded.

3. Did the Trial Court err in granting the Appellee’s Motion to Strike the

Deferred Prosecution agreement initially submitted by both parties?

Appellant argues that he entered into a deferred prosecution agreement with the

Prosecutor in good faith, and compromised his trial strategies, to his detriment, when he shared

information with the Prosecutor. The Prosecutor moved to strike the agreement and asked to

proceed to trial. The Motion was granted.

Both parties rely heavily in their arguments to this Court on caselaw dealing with plea

agreements that are withdrawn. This reliance is misplaced. Deferred prosecutions are not plea

agreements. By their very nature they are pre-adjudicative instruments designed to rehabilitate

rather than punish. They are considered sentencing alternatives. See, State v. Ammons, 105

Wn.2d 175, 180 (1986) (citing State ex rel Schillberg v. Cascade Dist. Court, 94 Wn.2d 772

(1980))

Generally speaking, the government has broad prosecutorial discretion when deciding

who to prosecute. See, Wayte v. United States, 470 U.S. 598, 607 (1985). This discretion

included withdrawing the decision for a deferred prosecution. Nothing in the record indicates

the Appellant moved to limit or exclude any information he feels the Prosecutor gained through

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the negotiation process. When asked at Oral Arguments what kind of information was used

neither party identified any specifics. We hold that Trial Court did not abuse its discretion in

allowing the prosecutor to exercise his discretion in withdrawing the deferred prosecution

agreement. If any harm came from it, the Appellant did nothing to prevent it at trial level and we

do not have enough proof of harm to review it now. The Appellant has failed to sustain his

burden on this issue. We affirm.

4. Did the Trial Court exceed its authority by sentencing the Appellant to

conditions to be in effect for two (2) years?

The Appellant was sentenced consecutively on two (2) Class B offenses. Each carried a

maximum jail time of 180 days and/or a fine of $2,500. The total jail time allowed, when

sentenced consecutively, is 360 days. As a condition of his suspended jail time and suspended

fine, the Court imposed two (2) years probation and other conditions for two (2) years, i.e. twice

the time allowed for the jail term (actually twice the time plus ten days).

The only authority provided for this issue is the statutory provision allowing the Court to

impose “reasonable” conditions for probation. CTC §3-1-261. Appellant argues that it is logical

to assume that twice the allowed jail time is unreasonable.

We cannot rule on suppositions. We take judicial notice that it has been a long-standing

practice of the Trial Court to impose such conditions. By saying it is unreasonable does not

make it legally so. The practice is reasonable on its face. The Appellant has not shown where the

harm would be nor how his due process rights would be violated. In effect, to shorten the time

would place the burden on the Appellant to pay his fine, do his community service work, and

comply with all the conditions in a shorter time span. We cannot speculate on what effect this

would have on his ability to do all of these things in a shorter time.

We need not speculate. We find that the statute allowing for reasonable conditions

supports the Trial Court’s decision. The Appellant has not met his burden in showing the Trial

Court abused its discretion. We affirm.

ORDER

Based on the foregoing reasons, we AFFIRM the Trial Court on all the issues herein, and

REMAND this matter back to the Trial Court for further actions consistent with this Opinion

Order.

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PAGE DELIBERATELY LEFT BLANK

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COLVILLE TRIBAL ENTERPRISE CORPORATION, Petitioner,

vs.

ADMINISTRATIVE LAW COURT, Respondent,

Nannette CHAPA, Real Party in Interest.

Case No. AP99-006, 4 CTCR 18

8 CCAR 11

[Leslie Weatherhead, represented Petitioner;

Respondent did not appear nor was represented;

R. John Sloan Jr., represented the Real Party in Interest;

Trial Court Case Number: A99-19004]

Oral arguments held December 17, 1999. Decided March 31, 2005.

Before Chief Justice Anita Dupris, Justice Dave Bonga and Justice Earl L. McGeoghegan

The Court of Appeals heard Oral Arguments on this case on December 17, 1999. The

Petitioner, Colville Tribal Enterprise Corporation (CTEC), appeared through counsel, Leslie

Weatherhead, attorney; The Respondent Court did not appear; the Real Party in Interest,

Nannette Chapa, appeared in person and through counsel, R. John Sloan, attorney.

Dupris, CJ, for the panel.

SUMMARY

The Petitioner, Colville Tribal Enterprise Corporation, (CTEC) filed a Writ of Prohibition

asking this Court to prohibit the Colville Tribal Administrative Judge from exceeding his

jurisdiction. The Administrative Judge heard an employment appeal in which Nannette Chapa

(Chapa), was reinstated in her position with CTEC’s Gaming Division. The Administrative

Court Judge found that, as a matter of law, Chapa did not commit the offense of Theft, which

was the basis for her employment termination. Chapa asserts the Writ of Prohibition is not

properly before this Court and should be denied. We agree.

FACTS

Chapa was an employee with CTEC at the Okanogan Bingo Casino in the pull-tab

department. The manager of the casino terminated Chapa’s employment with CTEC after

seeing on a casino video surveillance camera of January 19, 1999 Chapa giving the husband of

a fellow employee $40 worth of pull tabs without receiving money for them. CTEC found that

Chapa committed a theft of money. Chapa appealed through administrative channels, then filed

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an appeal with the Colville Tribal Administrative Court.

Chapa did not deny she gave the $40 worth of pull tabs. She stated she told the pull tab

teller she was going to “pay back” the pull tab amount later in the lunch room. Chapa stated she

did in fact pay the $40.00. An accounting of the pull tabs a couple of days later showed that the

pull tab games balanced.

The Administrative Court found that CTEC could not prove Chapa intended to deprive

CTEC of its property which, the Administrative Court held, was an element of Theft. The Court

held the termination was contrary to the law, granted Chapa’s appeal and ordered her

reinstatement.

CTEC filed a Writ of Prohibition with the Court of Appeals to order the Administrative

Court to confine its decision to its lawful jurisdiction and to sustain CTEC’s decision to

terminate Chapa.

ISSUES

SHOULD A REQUEST FOR A WRIT OF PROHIBITION BE

REVIEWED BY THE COURT OF APPEALS WHEN, AS IN

THIS CASE, IT IS FILED FROM THE ADMINISTRATIVE

COURT INSTEAD OF THE TRIAL COURT? IF SO, SHOULD

IT BE GRANTED IN THIS CASE?

DISCUSSION

I. THE COLVILLE TRIBAL ADMINISTRATIVE COURT IS NOT A

COORDINATE COURT OF THE TRIAL COURT

The first question is whether CTEC may bring its appeal directly to the Court of Appeals,

thereby bypassing the Trial Court. Appellant argues the Trial Court and the Administrative

Court are coordinate courts operating at the same level but adjudicating different matters, and

the administrative court is in effect a division of the Trial Court. It cites, as authority,

Resolution 1989-385 (Colville Tribal Court as an administrative court in certain cases).6 As

such, CTEC argues, the Court of Appeals has the authority to review decisions of lower courts

and the authority to issue the Writ of Prohibition to the Administrative Court.

Chapa argues the two courts are not coordinate courts and that CTEC did not exhaust its

Resolution 1989-385, states, in relevant part: “... the Colville Tribal Court ...[shall] be the administrative court in all cases where any

ordinance or resolution of the Colville Tribes provides for a hearing before an administrative court and such ordinance or resolution does not

specifically identify a court or agency to act as the administrative law court....”

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remedies before appearing in the Court of Appeals. In support, Chapa asserts the Trial Court

has more authority and less limitations than the Administrative Court. The uniqueness of the

question makes it one of first impression and without an equal in the non-Indian court systems.

For these reasons we do not have legal authority from the state and federal systems to offer us

guidance.

We have ruled in the past that the Administrative Court is part of the Executive Branch

and is an administrative tribunal. See E. S. v. CCT Adm. Law Court, et al., 1 CCAR 48, 1

CTCR 54 (1991).

In CTEC v. Orr, 5 CCAR 1, 3 CTCR 05, 26 ILR 6005, (1998) we stated

“...it is our understanding that the Colville Tribal Administrative

Court is a court of limited jurisdiction, not a court of last resort....

[and] limited by the jurisdiction given them by the lawmakers.

They are not normally considered full courts of equity.”7

The language regarding the administrative court is in dicta, however, and not squarely

answered by this Court. After reviewing the law we find the dicta in Orr to state the better law

in this matter, and hereby adopt it as controlling. We hold that the Colville Tribal Administrative

Court is not a coordinate court of the Trial Court. It is an administrative tribunal with limited

jurisdiction.

II.

REQUEST FOR WRITS MAY BE BROUGHT DIRECTLY TO THE

COURT OF APPEALS IN CASES WHERE THE TRIBAL COURT

JUDGES ALSO ACT AS ADMINISTRATIVE JUDGES

Even so, Petitioner argues, it should be able to bring it’s request for a Writ directly to the

Court of Appeals because the judges of the Administrative Court are inextricably tied to the Trial

Court. The Council has designated the trial judges as the administrative judges. See Resolution

1989-385 (supra, at footnote 1). Petitioner’s argument has merit. It is conceivable there can be

potential conflicts of interest when an Associate Judge is asked to rule on the appropriateness of

the Chief Judge’s opinions when the Chief Judge is acting as an administrative judge. The Chief

Judge is responsible for assigning cases to the Associate Judges, and for administrative

supervision of the Associate Judges. See CTC §1-1-100 (“...Associate Judges shall preside over

proceedings as assigned by the Chief Judge....”). It creates an appearance of fairness problem.

This Court has issued Writs of Mandamus in two cases. See, Gallagher v. Anderson, et

In CTEC v. Orr the issues involved implied contracts and termination-at-will of employees, and not the nature of the administrative court.

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al., 5 CCAR 51, 3 CTCR 37 (2001) (Court of Appeals issued a Writ of Mandamus directing

Trial Court to rule on eight motions) and CCT v. Laramie, 4 CCAR 2, 2 CTCR 65, (1997)

(Court of Appeals issued a Writ of Mandamus directing the Trial Court to issue a stay pending

appeal and determination by the Court of Appeals if the order being appealed was final). Both

Writs came from the Trial Court. Whether Writs from Administrative Court may be filed initially

with the Court of Appeals is a question of first impression.

The U.S. Supreme Court, in Ex Parte Republic Peru, 318 U.S. 578, 63 S. Ct. 793, 87

L. Ed. 1014, (1943), citing Ex parte United States, 287 U.S. 24, recognized that in certain

circumstances it could address a Writ of Mandamus even when appellate jurisdiction was in a

lower court. It said:

“...[S]uch power will be exercised only where a question of public

importance is involved, or where the question is of such a nature

that it is peculiarly appropriate that such action by this Court

should be taken. In other words, application for the writ ordinarily

must be made to the intermediate appellate court, and made to this

Court as the court of ultimate review only in such exceptional

cases.” (at 87 L. Ed. pp 584-585)

Although the Navajo Nation has statutory authority which allows its Supreme Court to

issue Writs to lower courts, (see, Yellowhorse et al v. the Window Rock District Court, the

Honorable Robert Yazzie, Judge, No. A-CV-15-86, 1986) the Navajo Supreme Court also

recognizes the inherent authority of its Court to issue such writs:

“The highest appellate court should also have authority to entertain

original proceedings, such as those for writ of mandamus or

prohibition, in aid of performing its responsibilities as a court of

review. This authority is generally and properly held to be an

inherent aspect of the highest court's status as such.” In the Matter

of Contempt of Arnold Sells, A-CV-05-85 (Navajo, 5/31/1985)

(cite omitted).

We find these authorities persuasive and hold that an exceptional case exists herein. That

is, when the same judges act in the capacity of both trial judges and administrative judges, it is

appropriate to seek relief by Writ directly from the Court of Appeals. Respondent argues that

this Court is without any statutory authority to issue Writs. It is true there is no specific statutory

authority. We agree, however, with the Navajo Court’s assertion of an inherent authority to

address the issues in a Writ. Our Courts are young in comparison to the state and federal systems.

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8 CCAR ___

We are constantly growing, in amount of cases and complexity. In recognition of the potential

that the Court would grow faster than the statutes, the Tribes enacted CTC §1-1-144. 8 We hold

that in this case the Court of Appeals has the authority to address the request for a Writ herein.

III.

WRIT OF PROHIBITION STANDARDS NOT MET

In assessing whether a writ of prohibition should issue, we first need to establish the

standards to use. There are none in our tribal statutory or case laws at present. In Yellowhorse,

supra, the test for a Writ of Prohibition was set out as follows:

A writ of prohibition is an extraordinary remedy which will be

granted only in rare cases showing absolute necessity. At a

minimum the application must show that (1) the lower court is

about to exercise judicial power; (2) the exercise of such power by

the lower court is not authorized by law; and (3) the exercise of

such power will result in injury, loss or damage for which there is

no plain, speedy and adequate remedy at law.

Both parties, citing state and federal authorities, recognized that Writs of Prohibition are

extraordinary remedies, used to confine a lower court to not going beyond its jurisdiction in its

decisions, and used in situations for which there is no adequate legal remedy. We reviewed the

standards set in the state and federal cases, and find that the standard set out in Yellowhorse,

supra, is more appropriate for our jurisdiction. The Yellowhorse standard has three (3) criteria:

(1) the lower court’s prospective, impending exercise of jurisdiction; (2) the illegality of such

exercise of jurisdiction; and (3) the irreparable, immediate harm to the Petitioner for which there

is no other adequate legal remedy other than a Writ. This high standard is necessary to prevent

the Court of Appeals from unduly interfering with the day-to-day work of the lower courts. We

adopt the Yellowhorse standard.

It is the Petitioner’s position that the lower court herein exceeded its jurisdiction in that

the Administrative Court found the weight of the evidence was different than that found by

CTEC. The Administrative Court found that the evidence was insufficient to prove that Chapa

intended to commit theft and her termination from employment for theft was contrary to law.

The Petitioner asserts the Administrative Court, in making such findings, acted beyond

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.

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8 CCAR ___

the court’s limited jurisdiction as granted in CTEC’s Personnel Policies and Procedures

Manual (Manual), which states, in part:

“The Administrative Court shall affirm the decision to terminate

unless the Administrative Court finds that, (1) at the time the

decision was made there was no evidence to support the decision;

(2) that the decision was contrary to Law. It shall not be grounds to

reverse that the Administrative Court would have reached a

different decision. The decision of the Administrative Court shall

be final and there shall be no further appeals or review in any Court

or other forum.”

The Petitioner, by its own policies then, cannot ask for a review of the decision by the

Trial Court because decisions of the Administrative Judge are final. For this reason CTEC has

filed the request for a Writ of Prohibition, asking this Court to direct the Administrative Court

to not exceed its jurisdiction in its review of CTEC’s decision. CTEC asserts the

Administrative Court acted beyond its jurisdiction. Beyond finding that the Administrative

Court exceeded its jurisdiction, the Petitioner also asks us to direct the Administrative Court to

change its decision, which in effect, would be reversing the Administrative Court’s decision.

Chapa, as real party in interest, aptly points out that in fact the Petitioner is using the Writ of

Prohibition to get an appeal because it does not allow appeals in its own policies.

We apply the Yellowhorse three-prong test in deciding whether a Writ of Prohibition

should be granted herein. That is: (1) the lower court is about to exercise judicial power; (2) the

exercise of such power by the lower court is not authorized by law; and (3) the exercise of such

power will result in injury, loss or damage for which there is no plain, speedy and adequate

remedy at law. Yellowhorse, supra. If the Petitioner fails to meet any one of the prongs of the

test, the Writ should not be granted.

The Petitioner cannot meet the first part of the standard for Writs of Prohibition: it asks

this Court for a retrospective remedy. It asks this Court to tell the Administrative Judge he was

wrong in his already-entered findings, and to change them. There is no issue on the prospective,

impending exercise of jurisdiction by the Administrative Judge before this Court. For this reason

we will not even address the second and third prongs of the Yellowhorse standard, and we deny

the Writ and hereby dismiss the request for a Writ of Prohibition in this matter.

It is so ORDERED.

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8 CCAR ___

Court of Appeals Reporter

8 CCAR ___

Ryan MARCHAND, Appellant,

vs.

Colville Confederated Tribes, Appellee.

Case No. AP05-001, 4 CTCR 19

8 CCAR 18

[Steve Graham, Attorney at Law, representing Appellant.

Samuel Conkin, Office of Prosecuting Attorney, representing Appellee.

Trial Court Case No. CR-2004-27167]

No oral arguments were conducted, decision based on briefs filed.

Decided May 20, 2005

Before David Bonga, Presiding Justice, and Associate Justices Edythe Chenois and Howard E.

Stewart

Bonga, J.

SUMMARY

On June 7, 2004, Appellant was charged by criminal complaint with Battery,

Contributing to the Delinquency of a Minor, and Abduction. A judge trial was begun on August

5, 2004, and concluded on August 28, 2004. Appellant was found guilty of all three charges.

Sentencing was held on October 15, 2004. At the conclusion of the testimony, Judge Aycock

reserved imposition of the sentence until he had a chance to review the report that was submitted

and was able to craft a sentence that would be tailored to Appellant’s situation. Judge Aycock

stated on the record that he would make his ruling the following Monday, which would have

been October 18, 2004. A written decision was eventually issued on January 4, 2005. Appellant

timely filed his appeal. A briefing schedule was agreed upon by the parties. Appellee failed to

submit a brief. After review of the documents submitted, review of additional case law, the Court

has found that the Trial Court erred by continuing the trial absent extraordinary circumstances

beyond the 60 day limit.

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8 CCAR ___

STANDARD OF REVIEW

The appellant must prove the trial judge clearly abused his discretion based on a review

of the facts of the case and the decision made. This review by the Court of Appeals cannot be de

novo. It is within the discretion of the Trial Court to grant or deny continuances. Unless there is a

showing of clear abuse of discretion, this Court will not overturn a decision of the Trial Court. A

review for an abuse of discretion violation requires that the Court of Appeals must find the Trial

Court’s actions were manifestly unreasonable, exercised on untenable grounds, or for untenable

reasons. Jack v. CCT, 6 CCAR 11 (2002). Review for an abuse of discretion requires that before

we will overturn the Trial Court’s decision, we must find that its actions were manifestly

unreasonable, exercised on untenable grounds, or for untenable reasons. We further need to

review for due process violations. Grunlose v. CCT, 5 CCAR 26 (1999).

COACR 13(e)(3) Effect if Briefs Not Filed, states that if an appellee does not file a brief

which has been ordered pursuant to an established briefing schedule and doesn’t request an

extension, the Court may decide the appeal based on the appellant’s brief and the trial record.

ISSUE: Did the Trial Court err by continuing the trial for the tribal prosecutors to locate

witnesses to come to court?

Appellant argues in his brief that his client was prejudiced by the court when it put the

trial on hold to allow the prosecution to locate additional witnesses. He asserts that it is widely

regarded that a goal of the courts is to avoid delay. A judge’s recollection may be compromised

by a delay, no matter how conscientious a note-taker he may be. This would violate his client’s

rights to due process through a speedy trial. A review of the record indicates that there were no

exceptional circumstances stated that would allow the Court to continue the trial past the 60-day

limit. As Appellee did not submit any argument in opposition to Appellant’s position, we are

compelled to grant this appeal based on this ground without discussing the two additional

grounds for appeal. We hold that the trial court erred by continuing the trial past the 60-day limit

without finding exceptional circumstances for the continuance.

Based on the above, we are granting the appeal and remanding to the trial court for

dismissal of the case.

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8 CCAR ___

Echo CRIM, Appellant,

vs.

Shon BAKER, Appellee.

Case No. AP04-007, 4 CTCR 20

8 CCAR 20

[Dan Gargan, Spokesperson for Appellant.

Tim Liesenfelder, Spokesperson for Appellee.

Trial Court Case Number CD-CR-2003-23271]

Argued on August 19, 2004. Decided July 11, 2005.

Before Chief Justice Anita Dupris, Justice Edythe Chenois and Justice Elizabeth Fry

Fry, J. for the Panel.

SUMMARY

This matter came regular before this Court on August 19, 2004 for Oral Argument. The

following persons were present, Dan Gargan, Spokesman for Echo Crim, Tim Liesenfelder,

Attorney, Spokesman for Shon Baker, and Shon Baker, Appellee.

The Court, having reviewed the records and files herein, and being fully advised in the

premises, affirms and remands.

FACTS I.

Echo Crim, Appellant, and Shon Baker, Appellee, resided together in an apartment for six

years. It was not established that they had a meretricious relationship. The Trial Court signed the

order March 19, 2004 for the trial on November 7, 2003 dividing their property. Both parties

were represented by counsel at trial. Show cause hearings were held on July 21, 2003 and August

11, 2003. The Court found that the Appellant had removed Appellee’s clothing from the

apartment and charged the Appellant with 75% of the value of the clothes for a total of

$1,030.50. The Court found that the Appellant had thrown food out of the apartment and ordered

that she pay the Appellee $200.00. The Court denied the Appellant’s request for the items on the

lists filed by her on July 7, 2003 and August 7, 2003 since there was no testimony on them at

trial. The Court denied the motions by the Appellee for his items on page one of his list entitled

“Shon’s Stuff Missing from Truman and Jackies” filed with the Court on November 7, 2003, as

he did not prove at trial that the Appellant removed them from Truman and Jackie s residence.

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8 CCAR ___

The Court then found that (a) the washer/dryer belonged to the Appellee, (b) the Nintendo Game

with four games would be split 50/50 between the parties, with one person to keep it and

reimburse the other for 50% of its value, or $350.00, (c) the same would happen with the new

tent, one person would keep it and reimburse the other for 50% of its value, or $80.00, (d) the

blue blanket was ordered to be split 50/50 with one person keeping it and reimbursing the other

for 50% of its value, or $10.00, (e) the VHS/VCR was dealt with in the same for a value of

$120.00, (f) the multi-colored bath mat would be dealt with in the same way, for a value of

$10.00, (g) four bath mats would be dealt with in the same way, for a value of $20.00, (h) the 27"

television would be dealt with in the same way, for a value of $250.00, (i) the $150.00 borrowed

from Debra Crim would be split 50/50 between the parties, (j) the shower stall damage cost

would be shared equally with the amount split equally when the receipt arrived, (k) the broken

eagle bell should be returned to Shon Baker, as it was a gift to him. The Court ordered the parties

to mediation to settle ownership of items on the Appellant’s Exhibit E filed on December 4, 2003

and the Appellee’s two lists filed on November 21, 2003.

The Court issued a restraining order against the Appellee to not contact or be within 100

feet of the Appellant, nor to be within 50 feet of her residence, but is allowed to visit other

people at the same apartments. The Court also issued a restraining order against the Appellant

to not contact or be within 100 feet of the Appellee. The restraining orders shall remain in effect

until November 7, 2005 unless modified.

The Court ordered that settlement of the items (i) to (k) should also be dealt with during

the same mediation. The Court reserved rulings on Finding of Fact #6, which referred to the

post-trial lists, and which was ordered to be the subject matter of mediation between the parties.

Appellant now argues that (1) many items on the list by Appellee were not there or were

already removed, (2) Appellant had testified that 6-16 garbage bags of clothing had been

removed by the Appellee, (3) no inventory of property had been taken, (4) a sum certain had not

been determined, (5) no ruling on the vehicle though the title was with the Appellant, (6) the

food in the apartment spoiled and they disposed of it and now it is valued at $200.00, and their

purchase was never established at trial, both claimed purchase, (7) there should be a correction in

the math on what she owes, which the Court ordered at $1,030.50 for clothing and $200.00 for

food for a total of $1,230.50 and not $2,261.12, (8) there is a fair amount of the property still in

the apartment, he requested to store. The Appeals Court allowed the Trial Court to determine this

matter.

The Appellee argues that (1) there was no arbitrariness at trial, (2) the Trial Court was in

the best position to judge veracity, evidence was in the record, a number of things were removed

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8 CCAR ___

from the apartment, values you were assigned to items, (2) mediation was not done.

ISSUES II.

1. Is there a sufficient basis for the Court’s ruling?

2. Should the Appellate Court remand for any reason?

DISCUSSION III.

The standard of review in this case is the “clearly erroneous” standard as established in

Colville Confederated Tribes v. Nadene Naff, 2 CTCR 08, 2 CCAR 50, 22 ILR 6032. The case of

Hoffman v. Colville Confederated Tribes, 4 CCAR 4 (Colville Confederated 05/05/1997)

discussed the Pullman-Standard v. Swint9 decision, which based this standard of review on

Federal Rules of Civil Procedure (hereinafter FRCP), Rule 52(a), which in 1982 provided that

district courts' "findings of fact shall not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

Upon review of these proceedings, this Court determines that there was a sufficient basis

for most of the findings of facts. There are however, several exceptions. There is the Debra

Crim loan, characterized by the Trial Court as money “borrowed from Debra Crim,” which

according to the record was actually made to her rather than from her. The Trial Court should

determine who Debra Crim borrowed the money from, and to whom she owes it. The Trial

Court should make a ruling on the ownership of the vehicle, and should also correct the math in

the amount that the Appellant owes the Appellant to $1,230.50.

The Trial Court should reconsider her decision to order mediation on the remaining item

lists, since it seems apparent that the parties will not be able to mediate with mutual restraining

orders in effect.

ORDER IV.

The Court, being fully advised in the premises, affirms the lower court decision except

for the following, wherein the Court finds good cause to remand this matter to the Trial Court for

a determination of the following:

(1) to whom the Debra Crim Loan is to be repaid, the Appellant or the Appellee, or to

share equally,

(2) the value and ownership of the vehicle,

456 U.S. 273, 102 S.Ct. 1781 (1982).

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8 CCAR ___

(3) correction of the judgment amount owed by the Appellant to $1,230.50,

(4) the value and ownership of the remaining unlitigated items on the post-trial lists.

IT IS SO ORDERED.

In Re the Welfare of J.L.V. (05-20-92), J.M.V. (12-29-93), & I.B. (04-20-99).

Jose Valdez-Catalan, Appellant,

vs.

Colville Confederated Tribes (CFS), Jessilyn Ballesteros (mother),

and J.V., J.V., and I.B. (Minors), Appellees.

Case No. AP02-006, 4 CTCR 21

8 CCAR 23

[Wayne Svaren, Spokesperson for Appellant Father.

David Ward, Spokesperson for Appellee CCT.

Dana Cleveland, Spokesperson for Appellee Minors.

Tim Liesenfelder, Spokesperson for Appellee Mother.

Trial Court case number CV-MI-2000-02003]

Argued July 18, 2003. Decided July 21, 2005.

Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Theresa M. Pouley

This matter came before the Court of Appeals on July 17, 2003 for oral argument. Appellant, father,

appeared through counsel Wayne Svaren. The Appellee, CFS, appeared through David Ward. The

Appellee, Jessilyn Ballesteros, did not appear in person or through counsel. The Appellees, J.L.V.,

J.M.V. and I.B., appeared through their spokesperson, Dana Cleveland of Colville Legal Services. Oral

arguments were held before Chief Justice Dupris, Justice Nelson and Justice Pouley.

Pouley, J for the Panel

SUMMARY

The Appellant Jose Valdez-Catalon (Appellant) appeals the October 30, 2002 Dependency

Review Order which excluded Appellant, the natural father, from consideration for placement of his two

minor children and their sibling, his step-child. Appellant asserts that the Trial Court (Court) erred in

excluding him from consideration on the basis of his citizenship and residence in Mexico and on the

basis of “not splitting up the siblings.” Appellant argues in the alternative that the Court made

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8 CCAR ___

insufficient factual findings to support these claims and failed to articulate clear legal standards for its

conclusions. The Colville Tribes, Appellant and the children’s counsel argue that any error is a harmless

error because the children should remain on the Colville Indian Reservation and that Colville custom and

tradition would require such a result.

Based on the reasoning below the Court of Appeals (COA) finds that the Court made insufficient

legal and factual findings to exclude the natural father from consideration for placement of the children,

and REVERSES and REMANDS this matter for findings consistent with the standards set in this

opinion.

FACTS

The three minors in this case, J.L.V., J.M.V and I.B., were made Minors-in-Need-of-Care and

have remained in an out-of-home placement since August 5, 2000. Appellee Jessilyn Ballesteros is the

natural mother of all three children. Appellant Jose Valdez-Catalon is the natural father of J.L.V and

J.M.V and the stepfather to I.B. Appellant is a Mexican citizen and resides in Mexico. The putative

father of I.B. is Jay Seller, but paternity has not yet been established and his whereabouts are unknown.

CCT Individual Service Plan (ISP) 9-1-01. The mother and all three children are members of the

Colville Confederated Tribes.

In 2000, the children were picked up and placed in foster care. The Court’s orders, spanning

more than two years, chronicle Appellant’s involvement in the subsequent dependency process. In 2000,

Appellant was incarcerated in the Spokane jail and was eventually deported. The Order from the

Adjudicatory Hearing dated August 30, 2000 states that the children wished to visit with their father and

that the Court found visitation to be in the children’s best interest. On March 7, 2001, the Court found

that Appellant had taken an “active role” with his children. On April 9, 2001, the Court’s order allowed

Appellant weekly visits with the children during his incarceration. On June 6, 2001, the Court found the

mother had not complied with her court ordered requirements. The Court also found Appellant had

progressed with his requirements and ordered Colville Family Services (CFS) to investigate placement

with him including assessment of CFS’s ability to monitor a case in Mexico, to obtain enforcement of

Colville Orders, to identify services available to transport the children to Mexico and to arrange for

visitation with the children.

In the next review hearings, CFS recommended the return of children to their father in Mexico.

Appellant had complied with all court orders and CFS made arrangements to have his compliance

information properly documented in Mexico and communicated to the Tribe, including urinalysis results.

The remaining identified issue was whether CFS could continue to actively monitor the case in Mexico.

The review order, filed on June 17, 2002, directed the Tribe to prepare appropriate documentation to

coordinate services with Mexico and prepare a home study. See Appellant’s Opening Brief, page 4, and

Tribal Court Order, filed October 30, 2002.

At the next review hearing, appealed to COA, the Court apparently reconsidered the previous

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8 CCAR ___

plan of placing the children with their father in Mexico. In October of 200210, the Court reviewed this

matter and found that: 1) the CFS Caseworker was considering Appellant for placement of the children;

2) that the Colville Prosecuting Attorney learned that the U.S. State Department considered Mexico to be

“out of compliance” in its agreements with the United States; 3) that sending the children to Mexico

would be a “crapshoot.” The Court then ordered that: “Jose Valdez-Catalan will no longer be considered

an option for placement of the minor children so long as he remains in Mexico. The Court will not

consider splitting up the three minor children to send two children, J. and J., to Mexico.”

Appellant timely appealed. Numerous continuances, not detailed here, were properly requested

and granted. Oral arguments were finally heard in July of 2003. It should be noted that in each of these

hearings Appellee mother was not in substantial compliance with her court- ordered requirements and

was not being considered for placement.

DISCUSSION

I. Can the Trial Court, on the basis of the record in this matter, exclude placement with a

natural parent in compliance with his service plan based on the fact that he is a citizen and

resident of Mexico?

Appellant argues that he is a fit parent, has complied with all court orders and should not

wrongfully excluded from his children. Both parties argue that the “best interest of the child” standard

should apply. However, Appellant argues, the Court failed to articulate clear legal standards. Appellee

CFS argues this failure is harmless error. We hold that when important dispositive rulings regarding

rights of parents and children are implicated, the Court must properly apply the “best interest of the

child” standard finding to exclude the natural parent from placement.

The “best interest of the child” standard is well-established in Colville Tribal statutory and case

law. The Colville Tribal Code, CCT 5-2-1 states:

Purpose and Construction. It is the purpose of the Chapter to secure for each

child coming before the Tribal Juvenile Court such care, guidance, and control,

preferable 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 whenever 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 improve 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 is to be liberally construed.

Although the Order itself has a file stamp of October, 2003, it was undisputably entered in October of 2002.

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8 CCAR ___

CTC 5-2-1.

The COA had occasion to further define this standard. In the context of terminating a parents

rights, with almost identical purpose language, the COA in In Re the Welfare of L.S, M.S., and C.S.,

stated:

It is uniformly held that substantive decisions regarding the welfare of a child shall be in

the best interest of the child. Welfare of child is paramount consideration in determining

the best interests of the child. (Emphasis added, citations omitted.) Tribal Courts have

regularly exercised discretion in determining the welfare and what is in the best interest

of minor children and, in the best interest of the Colville Confederated Tribes.

3 CCAR 72, 74 (1997).

Thus the Colville Tribal Code directs and the COA has held that in determining the care of minor

children, such care must be in the best interest of the child and the Tribe, and must seek to give such care

and guidance to preserve and strengthen families whenever possible. See CTC 5-2; In Re the Welfare of

J.AM., K.A.M., P.M., S.Z.M.Z., 3 CCAR 6, 8 (1995).

Case law is equally well-established on factors used to determine the best interests of the child.

The determination of the best interests of the child is a highly factual inquiry which will not be disturbed

on appeal without a showing of abuse of discretion. The Court must weigh a variety of factors, including

identifying the appropriate factors and weighing such factors to reach an appropriate legal conclusion.

Appellant argues the Court should adopt the standards articulated in In the Matter of the Dependency of

J.B.S., 123 Wn. 2d. 1 (1993). Although we note that some of the specific factual inquiries for persons

who are foreign nationals are useful, Colville Tribal law provides sufficient guidance on the factors to be

weighed. For clarity, we will outline the factors which should be included in an inquiry based on the best

interest of the child. The following factors, and others as needed on a fact-specific basis, should be used

in determining the best interest of the child:

1. The appropriateness of the care, guidance and control given to a child. CTC 5-2-1.

2. Preserving and strengthening the child’s family which may include consideration of the harm

suffered by the child in severing family relations. CTC 5-2-1.

3. Preserving and strengthening the child’s cultural and ethnic identity which may include

considerations involved in placing a child in another cultural or ethnic region. CTC 5-2-1.

4. The appropriateness of the home environment including the availability of a safe and stable

home, and the effect of abrupt changes in that environment.CTC5-2-1; In Re Welfare of

S.M.C., E.M.P., 2 CCAR 45, 46 (1994);

5. The availability of services, including therapeutic, educational and cultural for the child at

their home or placement. In re Welfare of D.A., L.F., 3CCAR 54,56 (1996).

6. The attachment of the child to the parents and/or their home and/or their siblings including

consideration of the length of current placement. In re Welfare of L.S., M.S., and C.S., 3

CCAR 72, 74 (1997). This would necessarily include consideration of the child’s

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8 CCAR ___

psychological and emotional bonds with each parent, siblings and extended family. In the

Matter of the Dependency of J.B.S., 123 Wn. 2d. 1, 11 (1993).

7. The attributes of the child including his or her age, physical well-being, and depending on

the age of the child perhaps the child’s wishes and certainly any harm to be suffered by the

child by a substantial change in circumstances. In re Welfare of L.S., M.S., and C.S., 3 CCAR

72, 74 (1997) and In re J.B.S. 123 Wn. 2d at 11.

This list is not meant to be exhaustive but rather instructive of the type of factors to be considered and

weighed with specific facts by the Court.

When these factors are compared to the record below, the factual record does not provide

sufficient information to weigh and balance the factors. We are not unmindful of the burden such an

inquiry would place on the Court in a typical review case where little has changed. However, this

examination is necessary when such a substantial modification, such as finding a child will not be

returned home to a parent, is done in a dependency review hearing.

The Appellee CFS and the Children’s Attorney argue that the custom and tradition of the

Colville Tribes weighs in favor of the children remaining on the Colville Reservation. Thus, Appellees

argue, since the result of the Court was correct, then the error must be harmless. We do not agree. The

custom and tradition of the Tribes was neither argued, weighed or considered in the Court’s findings.

Appellees are correct that this is a factor that must be weighed. However, the Court’s lack of findings

preclude us from reviewing the matter. As a final note, the Court did not consider or issue any findings

regarding the “best interest of the Tribe.” For all these reasons, we hold the Court erred in failing to

identify the legal factors and weigh each factor as required.

II. Did the Court err in finding that the detriment from separating siblings was sufficient

to exclude consideration of the natural father for placement?

Appellant agues that the Court gave improper weight to this factor when balanced against the

return of the natural children to their natural parent who is successfully complying with court orders.

This is an appropriate factor to consider in placing children. See, Number 6 & 7, supra. However, this

factor alone cannot support an order to exclude a natural parent from having his or her children returned.

As with the previous factor, we hold the Court erred in failing to properly identify and weigh the factors

for consideration.

CONCLUSION

For the reasons stated in this Opinion, this matter is REVERSED and REMANDED for the Court

to properly weigh the above factors and enter Findings of Fact and Conclusions of Law consistent with

the “best interests of child” standard.

Benjamin CAMPBELL, Appellant,

vs.

Court of Appeals Reporter

8 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP05-006, 4 CTCR 22

8 CCAR 28

[Wayne Svaren, Spokesperson for Appellant.

Samuel J. Conklin, Spokesperson for Appellee.

Trial Court Case No. CR-2005-28014]

Initial hearing held July 15, 2005. Decided July 22, 2005.

Before Chief Justice Anita Dupris, Justice Edythe Chenois and Justice Howard E. Stewart

Dupris, CJ, for the Panel.

This matter came before the Court for an Initial Hearing on July 15, 2005. This hearing

was rescheduled from June 17, 2005 in order for the parties to submit initial briefings specifically

on the issue whether the Appellant has a prima facie case to go forward on appeal. For the

reasons stated below we find there is no prima facie case and the Appeal is denied.

FACTS

On January 14, 2005 the Appellant was charged with one count of Obstructing Justice

and one count of Criminal Homicide; he was arraigned on the same day as he was charged. He

was held without bail pending the trial, which under the law entitles him to a trial within sixty

(60) days of his arraignment. After several pretrial hearings around the sixtieth day, the Appellee

Tribes moved to dismiss the charges without prejudice alleging the Tribes was not prepared to go

forward in that it was waiting for evidence from the Federal Bureau of Investigation. The

Appellant objected on record to the dismissal without prejudice based on the length of time he

had been incarcerated without bail. The Chief Judge, in his ruling dated the 21st of March, 2005

and signed the 1st of April, 2005, stated the rule of law in CCT v. Laramie, 4 CCAR 22 (1997),

and CCT v. Swan, 7 CCAR 38 (2003) dictated that it would be an abuse of discretion if he didn’t

dismiss without prejudice. He relied on the language in Swan which states: “A dismissal with

prejudice should be entered only when the merits of a case have been heard by the court.” The

Appellant filed a timely appeal, asserting that a dismissal with prejudice was appropriate in this

case.

ISSUE

This Court, upon initial review of the Appeal as submitted could not identify an

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8 CCAR ___

appealable issue based on the prior rulings of this Court. The parties were instructed to file

briefs specifically addressing whether there was a prima facie basis for the appeal, given there is

prosecutorial discretion to not prosecute a case. The Appellant filed a brief; the Appellee did

not.

The Appellant acknowledged that prosecutorial discretion allows the Appellee to ask the matter

be dismissed. He argues, however, that the Judge’s discretion allows granting a dismissal with

prejudice.

We consider the following issue:

Does the Trial Court have discretion to grant a dismissal with

prejudice under any circumstances?

DISCUSSION

The Trial Court’s reading of Swan is correct but incomplete. Swan is not the only case in

which this Court has dealt with dismissals with and without prejudice. There are two (2) other

cases, CCT v. Jack, 7 CCAR 33 (2003) and Stensgar v. CCT, 2 CCAR 20, 20 ILR 6151 (1993),

both of which give some direction on factors to consider in dismissing with or without prejudice.

Unfortunately these cases were not discussed in Swan, so we will interpret all of them together in

order to give the Trial Court a uniform standard to consider when confronted with motions for

dismissals with or without prejudice.

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 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 defendant delayed in asserting his right to sixty days until after the delay

happened; and there was no prejudice to the defendant.

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.”

Both the Stensgar and Jack cases recognize the Trial Judge’s discretion to grant

dismissals with prejudice. Swan, taken in context of such rulings, reinforces that the general rule

is that dismissals with prejudice are generally reserved for cases in which jeopardy has attached

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8 CCAR ___

or there has been a hearing on the merits. One distinction in Swan is that the Judge entered the

dismissal with prejudice sua sponte, as he did in Jack. Another distinction for Swan is that the

Trial Judge did not set out his reasoning for dismissal with prejudice in a situation where there

was no adjudication on the merits.

Finally, in Stensgar this Court looked to federal analysis of the issue as a guideline. In

United States v. Taylor, 487 US 326 (1988), the Supreme Court stated that if there were no

federal guidelines to follow, as there were in its case, the court “would be expected to consider

‘all relevant public and private interest factors’ and to balance those factors reasonably...” [cites

omitted] Id at 336.

RULING

It appears the Trial Court limited its analysis to Swan in deciding it had no discretion to

grant a dismissal with prejudice. It was not the intention of this Court to so severely limit the

Trial Court’s discretion that it would appear that we would be substituting our judgments for the

Trial Judge’s judgment in such day-to-day decisions. Swan must be read in its context. That is,

the Trial Judge made some prior rulings on potential evidence, and, when the prosecutor moved

to dismiss, the Trial Judge granted the dismissal with prejudice sua sponte, and without an

analysis of any factors available in Stensgar, Jack, or even the federal factors found in Taylor,

supra. This Court could have been clearer in Swan that it recognizes judicial discretion to grant

dismissals with prejudice before an adjudication of the merits in certain circumstances. That is

the rule of law when reading all of our cases together. We so recognize it in this opinion.

Based on the rule of law and a review of the record, we find that the Appellant has not

made a prima facie showing of an appealable issue, and the Appeal should be denied.

ORDER

Based on the reasoning herein we find that (1) the Trial Court has discretion, in

appropriate circumstances and with reasoned analysis, to grant motions to dismiss with prejudice;

and (2) this Appeal should be denied for lack of an appealable issue.

It is SO ORDERED.

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8 CCAR ___

PAGE DELIBERATELY LEFT BLANK

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8 CCAR ___

In Re Welfare of A. T. and J. T., Minors.

Roberta WEBER, Appellant,

vs.

CHILDREN & FAMILY SERVICES, A. T. & J. T, and Richard THOMAS,

Appellees.

Case No. AP05-007, 4 CTCR 23

8 CCAR 32

[Leoni Reinbold, Spokesperson for Appellant-Mother, Roberta Weber.

Jonnie Bray, Office of Prosecuting Attorney, spokesperson for Appellee-Children & Family Services.

Mike Larsen, Office of Public Defender, spokesperson for Appellee-Father, Richard Thomas.

Lane Throssell, Legal Services, spokesperson for Appellee-Minors.

Juvenile Case Number MI-2005-25018]

Hearing held August 19, 2005. Decided September 8, 2005.

Before Chief Justice Anita Dupris and Justice Dennis L. Nelson. Justice Conrad Pascal was not

present.

Dupris, CJ

PROCEDURAL SUMMARY OF APPEAL

On June 15, 2005 we held an Initial Hearing and found the record incomplete. The

Order Granting Petition for Minor-In-Need-Of-Care (MINOC) entered by the Trial Court on May

16, 2005 and signed June 3, 2005 did not include Findings of Fact specifically supporting the

Conclusion of Law that the children were Minors-In-Need-Of-Care. We stayed the Initial

Hearing and directed the Trial Court to file more specific findings. This was not done.11 On

August 19, 2005, we ordered the Order Granting Petition for MINOC be vacated and remanded

for the reasons stated below.

ISSUE

Is the Trial Court’s Findings of Fact sufficient to conclude, as a

matter of law, that the children herein are

Minors-In-Need-Of-Care?

DISCUSSION

The MINOC Petition was filed in this case on April 29, 2005. The Petition alleged the

It appears the Trial Judge did not get the order with these directions until one week ago; however, there is nothing in our files from the Trial

Court asking for more time.

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8 CCAR ___

following facts regarding the alleged MINOC status of the children:

(1)

The children were taken into temporary custody on April 27, 2005.

(2)

When the officer contacted the father, the father smelled of intoxicants.

(3)

The father made a self-report to the officer of his drinking as well as his sister

and mother drinking. He also indicated that he drank alcohol while the children

both played and slept.

(4)

The father was arrested for DUI.... while his children were in the car with him.

(5)

the father is being investigated for inappropriate sexual contact with Sheree

Thomas.12

(6)

CFS believes the father was granted custody of the minors pursuant to a Yakima

(sic) Tribal Court order.

There are no facts alleged in the Petition regarding the mother, Roberta Weber’s ability to

care for the children. After an Adjudicatory Hearing13 on May 16, 2005, the Court found the

children herein were Minors-In-Need-Of-Care and scheduled a Disposition Hearing.

The only facts in the Trial Court’s Order Granting Petition for Minor in Need of Care

regarding the mother are (1) that Roberta Weber did not follow through with the Court orders set

out in those custody cases, and (2) that she did not have contact with the children since July

2003.

There are no findings regarding what actions the father took or failed to take which would

make him an unfit parent. The Findings of Fact regarding the father are that (1) the father has

stipulated to the petition for MINOC, however, not the facts contained therein; and (2) the Court

took judicial notice of the civil cases giving the father custody.14

CTC §5-2-261 Adjudicatory Hearing—Proof, states that the allegations of a MINOC

Petition must be proved by clear, cogent and convincing evidence. The Trial Court’s Findings

of Fact, Conclusions of Law, and Order granting the MINOC Petition are insufficient.

There are no specific Findings of Facts in the Order regarding what actions either parent

took or failed to take that proves the “minors have not been or cannot be provided with adequate

The age and relationship of this person is not alleged; she is not a child listed in the Petition.

CTC §5-2-259 Adjudicatory Hearing

The Juvenile Court shall conduct the adjudicatory hearing for the sole purpose of determining whether the minor is a minor-in-need-of care. The

hearing shall be private and closed.

The Order does not reflect any part of the foreign orders nor their relevant sections in the findings or conclusions; it only gives a conclusory

statement that such orders exist and are judicially recognized by the Trial Court.

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8 CCAR ___

food, clothing, shelter, medical care, education or supervision by their parents, guardians or

custodians as necessary for their health or well-being.” CTC§5-2-30 Definitions, (l)

Minor-in-need-of-care.

The Trial Court concluded the “minor’s [sic] father is not available to care for them,” but

there are no Findings of Facts to support this conclusion.

There are no Conclusions of Law regarding the mother, Roberta Weber’s fitness as a

parent. On May 27, 2005 a Disposition Hearing was held.15 The Trial Court entered the Order

of Disposition Hearing placing the children with the mother, Roberta Weber, upon the

condition she have a “clean urinalysis” before she received custody of the children. The Court

also set several conditions for Roberta Weber to accomplish, including obtaining a mental health

evaluation.

The father, Richard Thomas, was also ordered to do several rehabilitative things before

the next hearing.

On June 2, 2005, Appellee Child and Family Services requested a hearing to modify the

Dispositional placement of the minors with the mother, alleging she tested positive for drugs.

The mother filed her timely appeal herein alleging the Trial Court did not have a basis for finding

the children Minors-In-Need-Of-Care regarding the mother. We agree.

STANDARD OF REVIEW

The Court of Appeals engages in de novo review of assignments of errors which involve

issues of law. In Re The Welfare of R.S.P.V., 3 CTCR 07, 26 ILR 6039, 4 CCAR 68, (1998).

The issues herein are issues of law. The issue is whether the Trial Court had been shown by

clear, cogent and convincing evidence that both parents herein could or would not provide their

children “with adequate food, clothing, shelter, medical care, education or supervision.”

Regarding the mother-Appellant a more basic issue exists: were her fundamental due

process rights violated? From a review of the record we hold they were. The statutorily-required

pleading, i.e. Petition for MINOC, does not give the Appellant notice of what actions or

omissions, if any, she has taken regarding the children which constitute a finding of MINOC. It is

fundamental to due process that a person have notice of alleged wrong-doing, an opportunity to

be heard, and an opportunity to present evidence in one’s own behalf. The Appellant could not

respond to a Petition that does not set out specifically what she was to have done or failed to do.

CTC §5-2-262, Disposition Hearing, states that at the disposition hearing the Court “shall hear evidence on the question of proper

disposition.”

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8 CCAR ___

For this reason alone the finding of MINOC as it applies to her should be set aside.

What concerns us, too, is that there is not enough in the written Trial Court record for us

to review de novo whether the Tribes proved its case at the Adjudicatory Hearing by clear,

cogent, and convincing evidence. 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.

We cannot do this in the Orders herein. For example, the Petition alleges the father

abused alcohol while his minor children were with him, including a time when he was

subsequently arrested for Driving Under the Influence of Alcohol; and that he was being

investigated for inappropriate sexual contact with another person (whose age and relationship are

not set out in the Petition). There are no allegations in the Petition whatsoever regarding the

mother’s fitness.

The Findings acknowledge the father doesn’t agree with the facts alleged in the Petition

for MINOC. This is not clear, cogent nor convincing evidence of the facts alleged regarding the

father’s behavior herein; it only proves that Mr. Thomas disagrees with the allegations. The

Findings go into more detail of the mother’s situation, but these findings have no direct

correlation with allegations in the Petition.

A finding of fact must state a fact proved at the Trial. “The father abused alcohol while in

the presence of his children” is a sample of a finding of fact. A conclusion of law states a legal

conclusion regarding the fact that has been found. For instance, an example of a conclusion of

law regarding the sample finding of fact in this paragraph would be: “it has been shown by clear,

cogent and convincing evidence that the father cannot provide adequate supervision to the

minors.”

We are not unaware of the sensitive nature of cases such as these. We understand that

the underlying intentions of all involved are for the best interests of the children. The Courts

should always be conscientious of the impact made on a family when there is official

intervention.

When the 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.

We hold that the Trial Court (1) failed to give due process to the Appellant, Roberta

Weber; and (2) failed to make a complete, reviewable record of the findings and conclusions

establishing the Minor-In-Need-Of-Care status of the minors herein. We find that the Order of

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8 CCAR ___

Adjudicatory Hearing dated May 16, 2005 and signed June 3, 2005 should be VACATED and

this matter REMANDED for action consistent with this Opinion.

IT IS SO ORDERED.

In Re the Welfare of S. S.

Irene SMITH, Appellant,

vs.

CCT Children & Family Services, John SPRINGER, S. S.

Case No. AP05-013, 4 CTCR 24

8 CCAR 36

[Leone Reinbold for Appellant/mother, Irene Smith.

Evelyn Van Brunt for CCT Children & Family Serivces.

Lane Throssell for the minor, S. S.

Mike Larsen for the father, John Springer.

Juvenile Court Case No. MI-2005-25021]

Hearing held November 18, 2005. Decided November 21, 2005.

Before Chief Justice Anita Dupris, Justice Howard E. Stewart, and Justice Gary Bass

Dupris, CJ

This matter came before the Court of Appeals for an Initial Hearing on November 18,

2005. Appellant has appealed the Trial Court’s denial of her Motion to Dismiss the Disposition

Hearing. The Juvenile Court held it was not in the best interests of the child to dismiss the case.

Appellant asserts it should be dismissed in that she received inadequate notice of the Disposition

Hearing.

After reviewing the record below, we find that the Disposition Hearing on August 17,

2005 was not recorded. In George v. George, 1 CCAR 52 (1991), we held that we could not

make an adequate ruling on Appeal when there is an inadequate Trial record. The recourse is to

remand the matter for a new hearing. Appellant asked that we consider the Appeal without the

oral record in that she is appealing lack of adequate notice for the Disposition Hearing, which can

be found from reviewing the written record.

In In Re The Welfare of E.A., J.A., J.A., 3 CCAR 64 (1996) we held that the Juvenile

Court erred in granting a dismissal without first making findings and conclusions that the

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8 CCAR ___

dismissal was in the best interests of the minors. We found it is not sufficient to grant a dismissal

of a dependency case merely because of an alleged procedural error.

We now hold there must be a showing of prejudice to the moving party, a parent in this

instance, that outweighs the best interests of the child. This child had been adjudicated a

Minor-In-Need-Of-Care already16. This ruling is not being challenged in the Appeal herein.

Although the written record shows the Juvenile Court denied Appellant’s Motion to

Dismiss as not in the best interests of the child, the Order does not make specific findings for this

conclusion of law. We would need to review the oral record of the proceeding in order to

determine if there is sufficient evidence on the record to support this conclusion of law. Since

there is no oral record, it must be remanded to make an oral record.

For the reasons stated above we VACATE the Order of Disposition entered below, and

REMAND for another hearing, at which the Juvenile Court is directed to make either written or

oral findings regarding the denial of Appellant’s Motion to Dismiss with regard to the best

interests of the child.

IT IS SO ORDERED.

It should be noted that from a review of the record it appears that the disposition hearing was heard in front of Judge Abbott, yet the findings

and order from the hearing were signed by Judge Aycock. In In Re the Welfare of A.S., 3 CCAR 10 (1995) we held that a Disposition Order

signed by a judge who did not preside over the hearing was invalid, and the matter was remanded for a correctly entered order. This issue was

not raised herein, but we would still encourage the Juvenile Court to correct the affected orders herein in line with In Re A.S., supra.

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8 CCAR ___

FINLEY, Tobias, Appellant,

CTSC, TILLMAN & ANDREWS. Appellants.

Case No. AP05-008, 4 CTCR 25

8 CCAR 38

[R. John Sloan Jr., appearing for Appellant

Bruce Didesch, appearing for Appellees

Trial Court case number AD-2004-25004]

Argued November 18, 2005. Decided March 6, 2006.

Before Chief Justice Anita Dupris, Justice Dave Bonga and Justice Dennis L. Nelson.

Appeal of order denying appeal of termination of employment. The denial was based on

the administrative law court’s finding, following a preliminary hearing, that although Finley was

a seasonal employee receiving benefits associated with employment exceeding ninety days, he

was nevertheless a probationary employee. Senior staff interpreted company policy to not allow

probationary employees the right to appeal termination of their employment. We find Finley

was a seasonal employee having a reasonable expectation of continued employment and hold he

was entitled to appeal. Reversed and remanded.

Nelson, J., for the panel.

INTRODUCTION

The relevant facts in this matter are not challenged. Tobias Finley is an enrolled member

of the Colville Confederated Tribes first employed by Colville Tribal Services Corporation

(CTSC) on April 18, 2003. He was employed on several projects in different capacities working

as a laborer, cement finisher, and foreman/carpenter.

Each time Finley was assigned to a

project requiring a different skill his employment classification. During this time of continuous

employment he received good performance evaluations and no disciplinary action was taken

against him. He was temporarily laid off on October 22, 2004 and recalled by CTSC for ten

days in January 2005, laid off again, and then re-hired on January 27. He was terminated by

CTSC on April 20 for allegedly violating company policies. CTSC considered Finley a seasonal

employee at the time he was terminated.

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8 CCAR ___

Finley was informed by CTSC’s Chief Executive Officer, Paul Tillman, and by its

Human Resources Director, Lois Pakootas, of his right to appeal his termination to the

Administrative Law Court. Tillman testified at an appeal hearing that Finley, although a

seasonal employee, was in a probationary status thus not eligible to appeal his termination.

The Administrative Law Court found Finley to be a seasonal employee on probationary

status. Because of his probationary status that the Court held he had no right to appeal his

termination.

ISSUE ON APPEAL

The Notice of Appeal states the issue on appeal is whether Finley has the right to appeal

the termination of his employment to the tribal Administrative Court.

Re-phrased, we view the

issue as whether the administrative law court denied Finley due process of law by denying him a

hearing regarding the termination of his employment.

STANDARD OF REVIEW

This matter concerns issues of law and fact. Combined questions of law and fact are

reviewed under the non-deferential de novo standard when the administration of justice favors

the Court of Appeals. “Clearly erroneous” review is used in such questions when the

administration of justice favors the Trial Court. CTC v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR

6032 (1995). In this instance, the questions herein hinge on the reliance on Colville Tribal

Enterprises Corporation Employee Policy Manual (Manual) as the guiding law for the parties.

We find that the administration of justice favors this Court in that a critical question is whether

the Appellant should go through another “initial review” period after becoming a seasonal

employee, which is more a question of law.

DISCUSSION

The Colville Tribal Civil Rights Act, CTC 1-5-2(h) states in pertinent part: “The

Confederated Tribes of the Colville Reservation in exercising powers of self government shall

not... (h) deny to any person within its jurisdiction the equal protection of its laws or deprive any

person of liberty or property without due process of law.” This is nearly identical with the

Indian Civil Rights Act.17

25 U.S.C. 1302(8) states: “No Indian Tribe exercising powers of self government shall ...(8) deny to any person within its jurisdiction the

equal protection of its laws or deprive any person of liberty or property without due process of law.”

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8 CCAR ___

Finley contends the termination of his employment was an unlawful taking of his property

by the Tribes without due process of law.

It is well established that a reasonable expectation of

continued employment may be a property interest and thus entitled to the protection of due

process procedures. See Roth v. Board of Regents, 408 U.S. 564 (1972), and its progeny.

must first determine whether Finley has an interest protected by due process of law and, if so,

what process is due. LaCourse v. CCT, 1 CCAR 2, 5, 1 CTCR 5 (1982) (“Only the Tribe can

elucidate the meaning of these generic concepts [of due process and equal protection]...”)

Bliek

v. Palmer, 102 F.2d 1472 (8 Cir. 1997).

The right to continued expectation of employment is secured by “existing rules or

understandings. A person’s interest in a benefit is a ‘property’ interest for due process

purposes if there are such rules or mutually explicit understandings that support (a) claim of

entitlement to the benefit and that may (be) invoke(d) at hearing.” Perry v. Sinderman, 408 U.S.

593, 601 (1972). We adopt this rule of law as guidance in this matter.

A. Employment status

Whether Finley has a protected interest in his continued employment is determined by his

employment status at the time of his termination and the “rules and mutually explicit

understandings” which may bolster his claim. The employees of CTSC are categorized as either

full time, part time, temporary, on call, contract, emergency hire, or seasonal.

The two employment categories germane to this matter are “temporary” and “seasonal.”

As noted, a temporary employee is one who is hired for less than ninety days. Should the period

of employment exceed ninety days, the employee automatically moves into the seasonal

category. Temporary employees accrue no benefits and, by definition, have no expectation of

continued employment. Seasonal employees accrue benefits such as health and disability

insurance, participation in 401(k) retirement plans, and paid leave. Finley, a seasonal employee,

was employed continuously by CTEC for over eighteen months and subsequently laid off and

re-hired.

All employees, no matter how classified, are either exempt (ineligible for overtime

compensation) or non-exempt (eligible for overtime compensation and whose duties meet criteria

set by the Tribes or the federal wage and hour laws). It is because of the federal wage and hour

laws that an employee’s transfer to a new job classification is memorialized by a payroll

information/job change sheet.

CTSC contends Finley lost his status as a seasonal employee each time he transferred to a

new wage classification. It further argues he began each new wage classification as a temporary

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8 CCAR ___

employee in a probationary status.

Despite this, and despite later testifying that newly hired

temporary employees do not have the right to appeal termination, both Tillman and Pakootas

informed Finley he had the right to appeal.

Tillman testified that all employees have the right to appeal disciplinary actions,

including termination. According to Tillman, however, probationary employees, while having

the right to appeal “in house” do not have the right to appeal to the Administrative Law Court.

Ms. Pakootas interpreted the Policy and Procedures Manual in the same manner as Tillman.

She explained she had written a letter to Finley stating he had the right to appeal to the

Administrative Law Court, but that she had only done so because she thought the matter would

be resolved before going that far.

Following the preliminary hearing, the Administrative Law Court, held that Finley was a

seasonal employee at the time of his termination, but that he did not have the right to appeal

because he was terminated during the probationary period following his being recalled on

January 27, 2005.

B. Expectation of continued employment

We find it significant that seasonal employees transferring into another job classification

do not lose the benefits accrued following their initial probationary period. Finley had worked

continuously for eighteen months, was laid off for two months, recalled and laid off again, and

recalled for the last time in on January 27, 2005. His benefits immediately began to accrue each

time he was recalled.

That is, he was not required to complete the probationary period before

his benefits began to accrue. CTSC was unable to explain how or why Finley would continue to

receive benefits such as FTO, 401(k) contributions, and health insurance, but would lose the right

to appeal his termination during the probationary period following his recall.

Equally significant, the Manual provides that should an employee believe he has been

disciplined or terminated unfairly, he may appeal the adverse action to the General Manager of

the enterprise. Should the employee disagree with the General Manager’s decision, he may

appeal further to the Corporate Director of Human Resources. Should that decision be adverse,

the employee may make a final appeal to the Colville Tribal Administrative Court. See

Manual, Chapter XI(C)(3) - Discipline: Suspensions/Terminations/Appeals.

We conclude from Finley’s record of employment that he had a reasonable expectation of

continued employment - a protected property right. This is evidenced by the duration of his

continuous employment, the timely recalls after lay offs, his increased responsibility on some

projects, his good performance evaluations, the lack of disciplinary action, and the accrual of

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8 CCAR ___

benefits.

We further conclude, as did the trial court, that the Manual is confusing and ambiguous.

Statutory construction principles mandate that ambiguous documents be construed against the

drafter. Any ambiguity must favor Finley. Furthermore, the burden is on the employer, not the

employee to make clear to the employee what his status and what his rights are. See, Schmolke v.

Ho-Chunk Casino, 29 ILR 6012 (2001).

Section XI of the Manual does not deny a seasonal, non-probationary, employee the right

to an appeal. The Administrative Law Court erred in finding that Section VI.J.1 of the Manual

states “all employees” have an initial review period; it states all “new employees” have an initial

review period. Finley is not a new employee. Finley has a right to hearing on his appeal whether

his termination was warranted.

CONCLUSION

Accordingly, the Order Denying Appeal is REVERSED and the case is REMANDED for a

hearing on the merits of Finley’s termination from employment with CTSC.

IT IS SO ORDERED.

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8 CCAR ___

Steve MARCHAND, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP05-016, 4 CTCR 26

8 CCAR 43

[Elizabeth Fry, spokesperson for Appellant.

Joni Bray, Office of Prosecutor, spokesperson for Appellee.

Trial Court Case Number CR-2005-28170]

Argued March 17, 2006. Decided April 26, 2006.

Before Chief Justice Anita Dupris, Justice Gary Bass and Justice Howard E. Stewart.

Dupris, CJ

SUMMARY

The Defendant, Steve Marchand (Marchand) is charged by Criminal Complaint for

Battery, Assault and Reckless Endangerment, with a Domestic Violence enhancement, in

violation of CTC §§3-1-4, 3-1-3, 3-1-11, 5-5-54, respectively. The parties initially had a plea

agreement, not yet accepted by the Court, but accepted by both parties. The Prosecutor notified

Marchand and his Spokesman that she learned new information relevant to the Marchand’s

actions, including (1) a statement by a witness in a dependency case that Marchand’s children

were traumatized by his actions; and (2) that the victim objected to the plea agreement terms.

With this “new” information the Prosecutor withdrew her plea agreement offer. Marchand sought

to have the agreement specifically enforced at the Change Of Plea hearing on December 2, 2005.

The Trial Court found, on record, that the Prosecutor’s withdrawal of the agreement was proper

because of new information. Marchand asked for an Elder’s Panel to discuss whether the

Prosecutor should be held to the agreement based on a custom of keeping one’s word. The Court

denied the request, finding that an Elder’s Panel was not necessary to decide if there was a

custom or tradition regarding keeping one’s word.

Marchand filed the Interlocutory Appeal herein on December 9, 2005, pursuant to

COACR 6-A18 and COACR 7-A(b),19 specifically raising as issues (1) the denial of the Elder’s

6-A. NOTICE OF INTERLOCUTORY APPEAL. (a) A party shall initiate an interlocutory appeal by filing a written Notice of Interlocutory

Appeal (NOIA) with the Court of Appeals within five (5) days from the entry of the written order of the Trial Court. The opposing party has

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8 CCAR ___

Panel, and (2) denial of his request for specific performance of the plea offer which was

withdrawn. The Prosecutor did not file an objection to the Appeal. The Judge submitted a written

order on her ruling On December 21, 2005, after the Interlocutory Appeal was granted.20 For

reasons stated below, we deny the Appeal and Remand the case to the Trial Court.

ISSUES

(1) Did the Trial Court err in denying an Elder’s Panel to discuss whether the Prosecutor

is a tribal leader who should be held to her word? and

(2) When may the Prosecutor withdraw a plea agreement after it has been accepted by a

defendant?

STANDARD OF REVIEW

The issues raised are issues of law. We review de novo. Colville Confederated Tribes vs.

Naff,

2 CCAR, 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).

De novo review means we look at everything the Trial Judge had to review when she

made her decision, and not at any new information. The test is whether there a reasonable basis

for the Judge’s ruling, based on the facts and law she before her and not whether we have held

differently under the same circumstances.

ELDER’S PANEL

Marchand recognizes that in its December 21, 2005 Order, the Trial Court did make a

five (5) days after receipt of the NOIA in which to file a response with the COA on whether they oppose or agree with the interlocutory appeal.

Failure to file this statement may cause the NOIA to be granted by the COA.

7-A. GROUNDS FOR INTERLOCUTORY APPEAL. (b) The issue presented involves 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 litigation...

Marchand asked the Judge for a written Order on her ruling, but the Trial Judge submitted one only after directed to do so by this Court, after

the Interlocutory Appeal was granted. The Interlocutory Appeal may not have been granted in the first place if we had the Trial Court’s Order

when we first reviewed the case. It is important for the Trial Court to finalize all substantive rulings in writing in order to preserve judicial

economy in both Courts.

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finding of tradition regarding acting honorably and with respect. The Trial Court held:

“It is common knowledge and an accepted tribal traditional cultural value

and belief that one is expected to honor his word. It is one of the many

basic teachings and beliefs - central to who we are as Indian people - that

when we speak, we speak the truth and we honor our word - our word is

our honor. Core values shared by tribal people bind us together as a people

and define who we are. These basic values and beliefs include, but are not

limited to: a close relationship with the Creator; a respect and reverence

for all He has created; honesty; integrity; personal accountability;

closeness and love of family and community; humility; and a strong sense

of sharing, caring, and cooperation. As Indian people, we shouldn’t need

an Elders’ Panel to tell us that those are Colville tribal customs and

traditions. These teachings and beliefs should be so deeply imbedded in us

and so central to who we are that there is no question that tribal custom

and tradition require a person to keep their [sic] word.” Order from

Change of Plea Hearing Denying Request for Elders Panel, (Order)

December 21, 2005 at pp 2-3.

Marchand asks us to allow him to ask an Elder’s Panel to extend this tradition to include

a finding that the Prosecutor is like a traditional “chief,” and as such can never withdraw a plea

proposal in that tribal “chiefs” did not go back on their words. In Smith v. CCT, 4 CCAR 58

(1998), we held a request for an Elder’s Panel cannot be a “fishing expedition.” The party

asking for it has the burden of proof to show, through extrinsic evidence, that there is a genuine

custom or tradition question for the Panel to discuss. Id. at 61. In this case we have crossed into

the “fishing expedition” prohibited in Smith.

Marchand argues it is required of a tribal leader (“chief”) to follow through on what she

has offered. He offers excerpts from anthropological data to support this assertion. The

information offered discusses the traits of a good leader, and the role of the leader in guiding his

people. It discusses the pacifist traits of the San Poils and the Nespelems. It does not discuss a

person like the Prosecutor, so it does not support an assertion that a prosecutor-type person could

have existed in our past.

Marchand argues the Prosecutor is like a “whipping man” and “chief” combined. By

asserting it without a further showing that the Prosecutor’s position would come from such

roots is the fishing expedition. Marchand hopes the Elder’s Panel would find the modern day

Prosecutor is such a leader. It is not the role of an Elder’s to decide key facts in a case. It is the

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role of the Panel to give guidance on what is a custom or tradition (our primary law) when the

fact-finder, i.e. the Trial Judge, is unsure what such a custom or tradition would be in the given

circumstances. Marchand’s arguments for an Elder’s Panel are too tenuous to meet the Smith

test.

Reasonable judges may differ. The Trial Judge’s Order states adequate findings, based on

limited record before it, for denying the Elder’s Panel. The Judge’s decision is not an abuse of

her discretion, nor is it clearly erroneous. For these reasons Marchand has not met his burden.

STANDARDS FOR WITHDRAWING PLEA PROPOSAL

Our Court recognizes broad prosecutorial discretion. See, Mellon v. CCT, 8 CCAR 01

(2005).

The Prosecutor’s Office, in drafting plea proposals, has a policy of following

Washington State standards in deciding when to withdraw such proposals. Notice of this policy

is embodied on the form used by the Prosecutor’s Office, stating State v. Bogart, 57 Wn.App.

353 (1990) applies. Bogart states, citing State v. Wheeler, 95 Wn.2d 799, 850 (1981): “Absent a

guilty plea or some other detrimental reliance by the defendant, the prosecutor may revoke any

plea proposal.” Id. at p 356.

Marchand does not dispute the controlling rule of law of broad prosecutorial discretion

nor the current Prosecutor’s Office policy of following State law. It is Marchand’s assertion that

neither the federal nor the State standard need apply if an Elder’s Panel were to find that the

Prosecutor, as a “Chief,” were required to keep her word, no matter the circumstances. The

custom or tradition would override the current standards followed by the Prosecutor.

The question of searching for an applicable custom or tradition has been already been

addressed, supra. The real question remaining is, are the standards the Prosecutor applies

when withdrawing an offered plea proposal, as recognized by the Trial Court, adequate as a

matter of law? This is a question of first impression for our Court. Based on the reasoning

below we hold that the standards are adequate as a matter of law.

Even though the Trial Judge stated in her Order that she would not address the issue of

when a Prosecutor can withdraw an plea proposal issue she did enter findings she considered in

analyzing the prosecutor’s withdrawal of the guilty plea:

(1) “The Tribal Prosecutor based her initial decision to enter into the

Both parties discussed Mellon in the context of allowing the Prosecutor to withdraw plea proposals. This is not what Mellon recognized.

Mellon, relying on Wyate v. U.S., 470 US 598 (1985) for guidance, stands for the proposition that the Prosecutor’s has broad discretion to decide

who to prosecute. Id at 10. In Mellon the Prosecutor withdrew an offered deferred prosecution, not a proposed plea agreement.

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Agreement on incomplete or inaccurate information available to her at the

time...”;

(2) “As soon as the Prosecutor became aware of new information/allegations,

and the fact that the alleged victim was opposed to the Agreement, she advised

the Defendant that she was withdrawing her offer.”; and

(3) “The Defendant did not sign the guilty plea. The Court did not accept the

guilty plea. The Plea Bargain Agreement was not offered to the Court,

accepted by the Court, nor entered by the Court.” Order p 2.

We first look to the standards used by the Prosecutor’s Office. As a matter of policy, it

has adopted a State standard. That is, the plea proposal is subject to withdrawal up to the time the

Court has accepted a defendant’s guilty plea, or the defendant has relied on the proposal to his

detriment. Bogart at 356.22

This standard comports with the federal standard as found in Mabry v. Johnson, 467 US

504 (1984) in which the Supreme Court held that the Prosecutor has broad discretion to withdraw

a plea proposal up to the time the Court has accepted the guilty plea of the defendant. The

Supreme Court found no due process violations (“The Due Process Clause is not a code of ethics

for prosecutors; its concern is with the manner in which persons are deprived of their liberty.

Error! Hyperlink reference not valid.Here respondent was not deprived of his liberty in any

fundamentally unfair way.” id at 511). The Court went on to say that the effect of not enforcing

guilty plea left the defendant in same situation he was before the plea was offered: he is still

presumed innocent unless proven otherwise; he still has due process rights to a fair trial; he still

does not have to not speak against himself, and so on. The Court found no substantial prejudicial

effect to the defendant by not requiring Prosecutor to stand by the agreement. Id.

The Trial Judge’s assessment follows the general rules announced in both Bogart and

Mabry by accepting the unilateral action of the prosecutor to withdraw the plea before the

defendant actually entered it on record and had it accepted by the Court on record. In this case,

Marchand had notice that the Prosecutor could withdraw the plea proposal unilaterally. As stated

before, our standard of review is not that the answer must be totally right; it must be

supportable by the record.

This Court recognizes prosecutorial discretion. (Mellon). Our criminal court system is

Marchand asserts he detrimentally relied on the plea proposal; there are no facts of such a reliance in the record that would support an

interlocutory review of the issue. This argument must first be developed before the Trial Court before it can have a final review in this Court. It

is not a subject for an interlocutory appeal.

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based largely on the westernized system (e.g. Arraignments, pleas entered, presumption of

innocence, jury trials). It is far from a customary decision-making role as found in our history.

Marchand has not met his burden in showing that a tradition or custom should be considered in

this arena. Quite the contrary, if the Prosecutor’s Office is deprived of its discretion to withdraw

plea offers when the circumstances dictate such a decision, it would result in a more burdened

judicial system. The safety net for defendant’s who should have the agreements enforced is

already defined in the standards adopted by the Prosecutor’s Office under Bogart, in following

Wheeler: (1) those defendants who have entered a guilty plea in Court; or (2)who have

detrimentally relied on the offer. Neither of these circumstances have been shown in this case.

HOLDING AND ORDER

Based on foregoing, we hold (1) the Interlocutory Appeal request for an Elder’s Panel to

discuss whether the Prosecutor is a “tribal leader” or “chief” is DENIED; and (2) there is no

abuse of discretion by the Trial Court in not requiring the Prosecutor to reinstate the plea

proposal. This Interlocutory shall be DISMISSED and the matter is REMANDED to the Trial

Court for further action consistent with this Opinion.

It is SO ORDERED.

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8 CCAR ___

Lisa A. LOUIE, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP04-015, 4 CTCR 27

8 CCAR 49

[Leoni Reinbold for Appellant.

Joni Bray, Office of Prosecuting Attorney, for Appellee.

Trial Court Case Number CR-MD-2002-25132]

Before Chief Justice Anita Dupris, Justice Earl L. McGeoghegan, and Justice Howard E. Stewart

Dupris, CJ

SUMMARY OF TRIAL COURT PROCEEDINGS

Appellant, Lisa Louie (Louie), was charged criminally with one count of Abduction in

violation of Colville Tribal Law and Order Code §3-1-1 (Code).23 The charge arose from an

allegation that Louie violated a civil custody order dated April 29, 2002 in which the Tribal

Court gave temporary custody of Louie’s son to his father, Mathew Pakootas (Pakootas). The

civil court records indicate a series of custody orders for Louie and Pakootas regarding their son,

as early as December, 2001. Three different trial judges handled the civil case since it was

opened in 2001, including the trial judge who conducted the criminal trial.24

Louie asked to be allowed to present a defense of necessity, alleging her minor son was

being abused in Pakootas’ home and she removed him in order to prevent further abuse. She

argued she had no other legal alternative. Louie also alleged at her trial that she did not have the

requisite intent to commit the crime of Abduction because she did not have notice of the hearing

on April 29, 2002. In a civil case, the Trial Court entered an order on April 29, 2002 which

“Any person who shall willfully take away or detain another person against his will so as to interfere substantially with his liberty, or

knowingly and without the consent of the lawful custodian, shall take away, entice, or detain a child from the custody of his lawful custodian

when he lacks lawful permission or authority to do so, shall be guilty of Abduction. Abduction is a Class A offense.”

Chief Judge Aycock entered an order on record on December 13, 2001 (signed on February 25, 2002) giving custody to Pakootas and

visitation to Louie. On January 22, 2002 Judge Aycock entered a temporary custody order again giving Pakootas custody and Louie visitation

rights. Judge Gabourie entered an order on record on February 26, 2002 giving Louie and Pakootas joint custody and shared physical custody

with detailed visitation for both parents. On April 29, 2002 Judge Gabourie entered an order giving temporary custody to Pakootas. Judge

Gabourie entered an order on record on May 28, 2002 (signed on June 20, 2002) giving custody to Pakootas and no visitation to Louie. Judge

Abbott entered an order on record on March 3, 2003 giving Pakootas custody and supervised visitation to Louie. Chief Judge Aycock entered a

bail hearing order restraining Louie from contacting Pakootas or their son pending the trial on the Abduction charge. On May 28, 2004 Judge

Abbott granted a temporary restraining order against Louie contacting either Pakootas or their son.

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changed a custody order for the child in question. The initial orders gave both Louie and

Pakootas joint custody of their son. The Court entered a temporary order on April 29, 2002

giving sole custody of the child to Pakootas. The order was entered without Louie being present

at the hearing.

The Court denied Louie’s request to present a defense of necessity. The Court also made

findings on record, but not in a written order, that Louie received adequate notice of the

temporary custody hearing of April 29, 2002, and, therefore, could not argue she did not have

such notice. The jury found Louie guilty of the charge of Abduction on August 12, 2004; she

was sentenced on October 1, 2004 and filed a timely appeal on the same day.

COURT OF APPEALS SUMMARY

The appellant raised the following issues on appeal:

Did the Trial Court err by denying the defense of necessity?

Did the Trial Court err by not allowing the appellant to present evidence

on alleged child abuse?

Did the Trial Court err when the Judge made the comment “I will not allow

you to mislead the jury” during the appellant’s opening remarks?

Did the Trial Court err in the process it used to select which juror

would be excused at the end of the trial as the alternate juror?

After reviewing the record, the arguments of the spokesmen, and the applicable law, we

found that the issues for our consideration can be stated in the following two:

Did the Court err by not allowing Louie to present a defense of

necessity?25; and

Were the remarks the Trial Judge made to Louie’s Spokesman, Daniel

Gargan, (Gargan) throughout the trial such that would constitute

reversible error?

We will not rule on the jury selection question. Louie did not present any legal authority on the

issue. All seven jurors selected were subject to both preemptive challenges and challenges for

cause by both parties. There is no showing of prejudice to Louie nor any showing of reversible

error on the record.

The issue of whether the appellant should have been allowed to argue she believed her child was being abused in his father’s home forms a

basis for the defense of necessity, and, therefore is not a separate issue.

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As set out in the opinion below, we find first that Louie should have been able to present

a defense of necessity to the jury. Secondly, we find that, upon a review of the whole record,

Louie has shown that the Judge evidenced a bias against her Spokesman, Gargan, to a point

which constitutes reversible error. We reverse and remand.

STANDARD OF REVIEW

The first issue, whether the Judge erred by denying Louie the right to argue the defense of

necessity is a question of law, and de novo review is required. Colville Confederated Tribes vs.

Naff, 2 CTCR 08, 22 ILR 6032 2 CCAR 50 (1995); Wiley, et al v. Colville Confederated Tribes,

2 CTCR 09, 22 ILR 6059, 2 CCAR 60 (1995); Palmer v. Millard, et al, 3 CCAR 27, 2 CTCR

14, 23 ILR 6094 (1996); Pouley v. CCT, 4 CCAR 38, 2 CTCR 39, 25 ILR 6024, (1997); In Re

The Welfare of R.S.P.V., 3 CTCR 07, 26 ILR 6039, 4 CCAR 68, (1998).

The issue Appellant raised regarding the Judge’s conduct towards Louie’s Spokesman,

Gargan, necessitates a review of the whether there are sufficient facts to support the allegation

of bias against Gargan to constitute reversible error. That is, was the conduct of the Judge

towards the Spokesman such that it created an appearance of impartiality, which could have

influenced the Jury? This is a mixed question of fact and law, which we could review either

under the clearly erroneous standard, or de novo. See, Naff, supra.

If administration of justice favors the Court of Appeals, we review de novo. If it favors

the Trial Court, we review under the clearly erroneous standard. Id.. In this instance the

administration of justice favors the Trial Court. The Trial Judge’s role in a jury trial is both

administrative and decision-making. The Judge must impanel a jury and make sure the jury

understands its responsibilities; rule on evidence and applicable laws; and generally ensure the

trial is conducted fairly in front of a jury.

He must made quick decisions throughout a jury trial,

without the convenience of time that is afforded the Court of Appeals’ Justices who review the

decisions made. We review the last issue under the clearly erroneous standard.

DISCUSSION

A. DEFENSE OF NECESSITY

Although the arguments of both parties in their briefs seem to rest on whether or not the

defense of necessity is allowable in the Colville Tribal Court, the true question is whether Louie

should have been able to argue it in this case. The Court recognized the defense of necessity by

accepting State v. Gallegos, 73 Wash. App. 664, 871 P.2d 621 (1994) as a guiding principle of

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8 CCAR ___

the defense.

The test in Gallegos is not substantially different from the one Louie argues

should apply, i.e. that found in State v. Justesen, 121 Wash. App. 83, 86 P.3d 1259 (Div. 1,

2004).26

Both jurisdictions require the defendant to show she had a belief there was no other

alternative but to take the child. The Trial Court did not err in using the Gallegos standards as a

guideline.

The defense of necessity was addressed once before in this Court in CCT v. Naff, supra.

There the defendant was charged with a civil complaint for shooting elk on her property in

violation of the Tribes’ Fish and Wildlife Code. Naff argued the defense of necessity, stating

the elk were eating her cattle’s hay, which impacted her livelihood. She argued that the Fish and

Wildlife Department officers did not stop the elk from entering Naff’s property so she shot the

elk because she had no other alternative. Id. at pp52-54. This Court upheld the Trial Court’s

finding of necessity, finding “...the elk were an immediate threat... and the killing was done to

prevent severe and immediate threat to life and property of the defendant. The destruction of the

animals was done in direct response to the severe, immediate threat to life and property and that

the defendant took every reasonable step necessary to alleviate the severe immediate threat....”

Id. at p55.

Naff establishes the test for defense of necessity as one requiring (1) an immediate threat

to the defendant or his property; and (2) the act was done in direct response to, and to prevent the

severe and immediate threat; and (3) the actor took every reasonable step necessary to alleviate

the severe immediate threat before taking the act in question. In addition to these requirements of

the defense of necessity, Gallegos, supra, found that the defense is not available when either the

defendant brought about the compelling circumstance or where the defendant has a legal

alternative. Gallegos at p. 650. We hold that these five requirements for establishing the

defense of necessity, from both the Naff and the Gallegos decisions, comprise the standards to

follow in assessing whether the defense of necessity applies in cases before our Courts.

We were required to glean the trial record to find the Judge’s rulings on the issue of

whether Louie should be allowed to argue the defense of necessity. There is no written ruling on

the motions filed in our records.27 It appears from the Judge’s written notes on the day of the trial

In Justesen the Defendant was convicted of custodial interference after she hid her daughter in another state for 18 months because she

believed the father was molesting the child. The necessity defense was allowed even though there was evidence that no molestation occurred.

The Court held, inter alia, “A defendant who can prove by a preponderance of the evidence that, among other things, she reasonably believed

the child was in danger of imminent physical harm, has a complete defense to a charge of custodial interference.” at 86

In her brief Louie refers to an order entered by the Trial Court on February 23, 2005, where the Judge formalized her ruling on the issue of

the defense of necessity. Neither party has submitted this order to us; it was entered after this Appeal was filed. For these reasons we will not

consider the February 23, 2005 order as part of the record we review herein.

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that she relied on Gallegos, supra as guidance28 to deny Louie’s request to be allowed to

present a defense of necessity. She denied the defense of necessity after taking judicial notice

that Louie had adequate notice of the temporary custody order of April 29, 2002 in the civil

court case, and had adequate legal alternatives in the civil court. We must first ascertain when

is it appropriate to use the doctrine of judicial notice in criminal jury trials.

Judicial Notice

A general rule of common law in westernized courts is that the judge decides what is the

law of a case and the jury decides what are the facts of a case. 2 John W. Strong, et al.,

McCormick’s on Evidence § 328 (5th ed. 1999) (McCormick). This is the expectation and

practice in the Colville Tribal Court, too. For example, each jury panel is instructed with the

language “You are the finders of fact....” Appellee argues that common law rules of evidence

may be dispensed with at the Court’s discretion. See Code §2-1-171.29 Taking judicial notice “is

merely another way of saying that the usual forms of evidence will be dispensed with if

knowledge of the fact can be otherwise acquired.” Shapleigh et al v. Mier, 299 U.S. 468, 475,

57 S. Ct. 261, 81 L. Ed. 355 (1937) [cites omitted]. As a general rule taking judicial notice is an

acceptable practice under the laws of the Tribes.

We address whether it was acceptable to take judicial notice in this case. Here, the Court

took judicial notice of two important facts. First, the Court noted that Louie did receive

adequate notice of the hearing on April 29, 2002, the order from which forms the basis of the

criminal complaint herein.30 Second, the Court took judicial notice of the fact that Louie had

another legal alternative to her action of taking her child out of the area. Both facts go to proof

of the elements of the charge of Abduction, which states, in relevant part:

“Any person who shall willfully take away or ... detain a child from the

custody of his lawful custodian when he lacks lawful permission or

authority to do so, shall be guilty of Abduction.” (emphases added).

The elements of the crime of Abduction, under the fact pattern herein, necessarily include proof

See Judge’s Notes, Appellate Court Record, Tab #6.

” Evidence. The Court shall not be bound by common law rules of evidence, but shall use its own discretion as to what evidence it deems

necessary and relevant to the charge and the defense.”

The Order of the April 29, 2002 hearing does not state Louie received notice of the hearing; it states she was not present. The Court’s Order

states: “The Court is concerned about the Petitioner [sic] removal from school without notice to Respondent, contrary to the intention of the

Court’s previous order. [emphasis added]. The Court also ordered: “Petitioner is ordered to provided [sic] the clerk of court with her current

address immediately.”

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of (1) Pakootas’ lawful custody of the child; and (2) removal from his lawful custodian by

Louie; and (3) said removal was without lawful permission or authority. Each of these elements

are facts to be proved beyond a reasonable doubt by the Tribes. Fact-finding is generally within

the province of a jury.

For guidance we look to the federal courts’ interpretations regarding judicial notice, with

the caveat that Federal Evidence Rule 201 (Rule 201) gives the federal courts direction on what

can and cannot be given judicial notice. 31 “Federal Rule of Evidence 201(b) specifies what

matters are the proper subject of judicial notice: A judicially noticed fact must be one not subject

to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” U.S. v. Herrara-Ochoa, 245 F.3d 495, ___ (5th Cir.

2001).

We find the federal courts disfavor using judicial notice in criminal jury trials. In U.S. v.

Boyd, 289 F.3d 1254 (10th Cir. 2002) the court stated:

“In applying FRE 201, we are mindful that ‘[i]f a court takes judicial

notice of a fact whose application is in dispute, the court removes the

weapons [of rebuttal evidence, cross-examination, and argument] from the

parties and raises doubt as to whether the parties received a fair hearing.’

General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,

1083 (7th Cir. 1997). ...’[T]he effect of taking judicial notice under Rule

201 is to preclude a party from introducing contrary evidence and, in

effect, directing a verdict against him as to the fact noticed.’”

In a case in which the defendant was charged with being in the United States illegally, the

federal district court took judicial notice of (1) a pretrial hearing in which the defendant admitted

being found in the United States; and (2) a suppression hearing in which an officer testified he

detained the same defendant in El Paso, Texas. The prosecution did not present any evidence at

the trial that the defendant was found in the United States, which is an element of the offense of

which he was charged. The Court of Appeals found:

Taking judicial notice of the trial court record arguably infringes on

Herrara's Sixth Amendment right to confront witnesses. ...Taking judicial

notice in this case of an essential element of the crime... potentially

The Colville Courts do not have written rules of evidence. The Trial Court does not have written procedural rules. Many of the questions

that come before us could be addressed at the trial level if it adopted its own rules of procedure and evidence.

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infringes on Herrara's right to have each element proved beyond a

reasonable doubt.... there is no ... clear adjudicative fact in the instant case,

as the question of whether or not Herrara was "found in" the United States

on or about the date of the indictment is readily disputed nor is it capable

of determination by resort to sources whose accuracy cannot be reasonably

questioned. [cites omitted] U.S. v. Herrara-Ochoa, 245 F.3d 495, ______

(5th Cir. 2001)

There are instances in which a court takes judicial notice of adjudicative facts32 in a jury

trial. See United States v. Bello, 194 F. 3d 18 (1st Cir. 1999) (Court of Appeals upheld District

Court’s decision to take judicial notice of the site of the assault crime, i.e. a federal penitentiary,

as being within the jurisdiction of the Court in that its location was not subject to dispute.)

Courts may also take notice of “undisputed matters of public record,” such as official court

orders, but not the truth of the facts in the orders, especially when such facts are disputed. (Lee

v. City of Los Angeles, 250 F.3d 668, ___ (9th Cir. 2001)).

Finally, when a court is taking judicial notice, it must give notice to the parties of what it

is taking judicial notice of, and give the parties an opportunity to present evidence to the

contrary. A jury must be given instructions that it may accept or reject the evidence of which the

court has taken judicial notice when it weighs all the evidence. Id. at ____; see, also,

Shapleigh, supra, at 475; Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301

U.S. 292, 301-302. 57 S.Ct. 724, (1937) (“...notice.... does not mean that the opponent is

prevented from disputing the matter by evidence if he believes it disputable...Such at least is the

general rule, to be adhered to in the absence of exceptional conditions.”[cites omitted]); and

Garner et al v. Louisiana, 368 U.S. 157, 173, 82 S. Ct. 248 (1961) (“...unless an accused is

informed at the trial of the facts of which the court is taking judicial notice, not only does he not

know upon what evidence he is being convicted, but, in addition, he is deprived of any

opportunity to challenge the deductions drawn from such notice or to dispute the notoriety or

truth of the facts allegedly relied upon.”).

In sum, we learn that (1) taking judicial notice in a criminal jury trial is disfavored,

especially when the Court takes judicial notice of facts that would prove or disprove an element

“Those facts that must be found beyond a reasonable doubt by trier of fact before there can be a conviction.” Sundberg v. State, Alaska ,

667 P.3d 1268, 1271 (___).

“‘Adjudicative facts,’ of which trial court may take notice if fact is not subject to reasonable dispute, are those to which law is applied

in process of adjudication; they are facts that, in jury case, normally go to jury.” Grason Elec. Co. v. Sacramento Mun. Utility Dis., D.C. Cal.,

571 F.Supp. 1504, 1521 (____).

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of the offense charged; (2) Courts may take judicial notice of public records, as the Judge did

herein, but only to prove the existence of the orders, and not the proof of the facts therein,

especially when the facts are subject to dispute; and (3) when a Court is going to take judicial

notice in a criminal jury trial, the Judge should (a) give notice to the parties of what she is going

to take judicial notice so the parties may provide rebuttal evidence; (b) allow the parties to

present such rebuttal evidence; and ( c) instruct the jury that the judicially-noted evidence may be

accepted or rejected, and given whatever weight the jury sees fit, as with other evidence. These

requirements are accepted in the general legal community; we now hold these requirements to

apply to our Courts.

In the instant case, the judge did not follow these generally accepted tenets of judicial

notice. She established, as a matter of law, two important elements of the criminal charge against

Louie by finding that (1) the Court Order of April 29, 2002 showed that Louie had adequate

notice that she would be in violation of a “lawful” court order if she removed her child from the

custody of Pakootas; and (2) to show that Louie had legal alternatives available to her which

would preclude the defense of necessity. Further, the Court did not give notice to the parties of

her intent to take judicial notice of said facts, and she did not allow Louie to present evidence to

rebut the facts. Finally, the Court is not a party to the action, so the Court cannot have exhibits.

The judge took judicial notice of the civil orders she entered, in which she found that she made

the correct findings regarding adequate notice, an issue for the jury.33 For these reasons the Trial

Court abused its discretion in not allowing Louie to present a defense of necessity, and we

reverse on this ground.

BIAS AGAINST DEFENDANT’S SPOKESMAN

Louie states the Judge’s admonition to Gargan not to “mislead the jury,”and the Judge’s

tone and demeanor towards him evinced a bias against her and her Spokesman, such that it

constitutes reversible error. The Prosecutor disagrees; neither party submitted much in the way

of legal authority for us to consider on this issue. After reviewing the record, however, we agree

with Louie. If in fact it were just the one comment the Judge made to Gargan about not

misleading the jury, there would be no showing of error. However, during the trial, both in front

of the jury and outside of the jury’s hearing, the Judge made several comments to Gargan

The Court submitted two exhibits, marked “Court’s exhibits” for consideration by the jury. They were civil court orders dated March 3,

2003 and May 28, 2004 respectively, signed by the Judge conducting the criminal trial. The orders were offered by the Court on the issues of

custody and notice, it appears.

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regarding his conduct and presentation . For example:

1. During his opening statement, Gargan stated that he would show Louie and Pakootas

always had joint custody and visitation. He states further that the problem with one of the

hearings was that Louie did not receive any notice, and that she had the right to notice and

an opportunity to be heard, absolutely to be heard.

At this juncture in his presentation the Judge interrupted him and stated: “I’ll correct you.

The Court did send out notice and it was her duty to keep the court apprised of her

whereabouts... you may present in your opening statement facts or evidence, however you

are not to mislead the jury....”

2. On cross-examination of Pakootas, Gargan started to ask him about a 1999 Guardian

Ad Litem report.

The Judge said: “Ms. Bray [prosecutor], do you have any objections?”

Bray objected, stating the report was outside the time period they were referring to; the

Judge denied admission of the report without stating a reason.

3. At the close of the Tribes’ case Gargan moved for a directed verdict, arguing that his

client had no notice of the April 29, 2002 hearing, and, therefore, could not intend to

violate the order. The Judge denied the Motion, finding that parties of a custody

hearing have a duty to keep the Court apprised of their addresses. The Judge then stated

that even if Louie had no service of the April 29th hearing, she was present at the April

26th hearing, which order gave residential custody of Oscar to Pakootas from February

26-April 14, 2002.

4. Gargan renewed his request to be allowed to argue the defense of necessity.

The Judge made the comments that she was not going to allow Gargan to essentially

waste time by arguing with the Court. She stated that he has done this in other cases and

that she wasn’t going to allow it in this case.

Gargan stated was trying to make a Motion to Reconsider, but was not allowed to finish.

The Judge interrupted him and said this was not an opportunity to argue with the Court.

Gargan stated he was not trying to argue with the Court, but felt it was appropriate to

renew his motion because the Tribes presented new evidence.

The Judge stated tersely “the ruling stands.”

5. On direct examination of his client, Gargan asked her about the circumstances of her

arrest and transport to the Colville Reservation for arraignment. Louie explained she was

informed she was arrested on a material witness warrant; that she was held in custody for

32 days, sent from Lewiston to Spokane, from Spokane to Okanagan, and finally from

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8 CCAR ___

Okanagan to Court in Nespelem. She was arraigned and held without bail.

At this juncture in Louie’s testimony the Judge interrupted and asked “Is that relevant?”

In other words, the Court made an objection, sua sponte, then stated “the comments

about the detention will be stricken and the jury is instructed not to consider it.”

In reviewing the record, we find the Judge’s actions were not reasonable, and did evince

partiality or prejudice on the part of the Judge towards one of the parties. We have set out five

separate instances which can be considered irregular behavior for a Judge, especially in a jury

trial, but applicable in other hearings as well. We found the judge (1) chastised the spokesman in

front of his client and the jury, arguing with him, too; (2) made evidentiary objections sua sponte

on at least two occasions; and (3) introduced two pieces of documentary evidence as “court’s

exhibits.”

Further, when listening to the record, the Judge’s tone and demeanor towards Gargan

evinced a bias against him. (e.g. telling him she will not allow him to waste time arguing like he

always does). This bias is clearly shown in the record, and if we saw it, there is a good

probability the jury saw it. By making objections for the Tribes on at least two occasions the

Judge evinced a bias for the Tribes.

Any one of the instances stated above would not rise to a finding of bias; considering

them collectively, all happening in the same trial before the same jury, does rise to a showing of

clearly erroneous behavior on the part of the trial Judge. For these reasons the verdict must be

vacated, and the matter remanded.

ORDER

Based on the foregoing, we find the Trial Court committed reversible errors both in

disallowing Appellant Lisa Louie, to present a defense of necessity, and in evincing a bias against

her Spokesman, Daniel Gargan, and for Appellee Colville Tribes. The guilty verdict entered

herein is VACATED, and this matter is REVERSED and REMANDED for a new trial,

consistent with the rulings in this Opinion.

It is so ORDERED.

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8 CCAR ___

CTEC GAMING COMMISSION, Appellant,

vs.

Marianne MOSQUEDA, Appellee.

Case No. AP06-004, 4 CTCR 28

8 CCAR 61

[Elizabeth Fry, Omak WA, Spokesman for Appellant.

Marianne Mosqueda, appeared pro se.

Trial Court Case No. AD-2005-25007]

Argued June 16, 2006. Decided July 10, 2006.

Before Chief Justice Anita Dupris, Justice Gary Bass and Justice Howard E. Stewart.

Dupris, C.J., for the panel.

SUMMARY

This is an interlocutory appeal of a denial of an Affidavit of Prejudice brought pursuant to

CTC §1-1-143. For reasons stated below, we find the Trial Judge who reviewed the Motion and

Affidavit should have made a more detailed inquiry regarding whether there were sufficient facts

to support the Appellant’s allegations of potential bias on the part of Judge Aycock because (1)

Judge Aycock has already heard an employment case regarding the same parties, and ruled in

favor of the Appellee; and (2) some of the same facts alleged in the first hearing in which Judge

Aycock had made a ruling will form a basis for the Appellant’s allegations in the instant case.

Discussion

On April 19, 2006 CTEC filed an Affidavit and Motion to Recuse Judge Aycock from the

employment appeal case at the trial level, alleging “Marianne Mosqueda, the Petitioner herein,

has appeared before Judge Steve Aycock in an employment matter against this same Respondent.

The matter has turned into a termination case. Information from the prior proceeding will come

up in the fact-finding hearing in this case.”

On April 26, 2006 Associate Judge Connie Johnston entered an Order Denying Motion to

Disqualify Judge. She based her decision on three (3) grounds:

(1) it was untimely, having been filed 3 ½ months after the initial hearing in the case;

(2) the initial Order entered by Judge Aycock on January 3, 2006 constituted a

discretionary ruling by the Judge, which is “trial action.” CTC §1-1-143 requires that the

Affidavit of Prejudice be filed before any trial action is taken; and

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(3) Insufficient facts were alleged, which do not establish or set forth a basis for the

motion to disqualify Judge Aycock.

A review of our rulings on Affidavits of Prejudice show that we have five (5) cases in

which we have set some standards for such affidavits. From a review of these cases we find first

that the standard of review is clearly erroneous. See, Louie v. CCT, 7 CCAR 46 (2004) (“The

clearly erroneous standard applies here when we review the facts upon which the judge relied to

deny the Affidavit...”).

The decision to disqualify a judge is within the sound discretion of the

reviewing judge, and is not automatic. See, St. Peter v. CCT, 1 CCAR 1, 1 CTCR 72 (1993) .

Any decision to disqualify a judge requires a careful review of the affidavit filed and a

particularized inquiry into the fact alleged in each case. See, In Re L.S.-L & R.S.-L, Minors v.

CCT, et al, 5 CCAR 46, 3 CTCR 33 (2001) Although additional fact-finding is not necessary

upon every review of an Affidavit of Prejudice, one must be given in circumstances when “...the

Affidavit contains serious allegations and very little fact....[D]ue process and judicial economy

require the judge to consider whatever evidence can be offered for or against recusal.” See,

Cleparty v. CCT, 2 CCAR 19 (1993). “Each reason will, by its very nature, be unique to each

party filing the Affidavit, dealing with the party's relationship with the Judge.” See, In Re L.S.-L

& R.S.-L, Minors v. CCT, et al, 5 CCAR 46, 3 CTCR 33 (2001), and Ortiz & Louie v. CCT, 7

CCAR 07, 4 CTCR 0 (2003) (“Applying basic fundamentals of due process, we hold that a fact

finding should be held, whether by hearing or by sworn affidavits, to allow the parties an

opportunity to put forth facts concerning their allegations in the Motion.”)

HOLDING

When we reviewed the record below there was no indication that a fact-finding had taken

place at the Trial Court in the instant case. Our records show that Judge Aycock has held two

(2) status or pre-trial hearings regarding the termination of Ms. Mosqueda from her employment

with CTEC. We assume this is the only record Judge Johnston had to review when she made her

decision.

The Affidavit submitted by CTEC alleges Judge Aycock had already heard some of the

evidence to be presented in the termination hearing. What CTEC failed to allege in its writtn

affidavit was that the fact-finding was a separate case previously heard by Judge Aycock, in

which the Judge found for Ms. Mosqueda and against CTEC. The case number of the hearing has

not been submitted to us. Ms. Mosqueda confirmed on record that Judge Aycock did handle

another employment appeal she filed against CTEC, in which she prevailed.

If we only look at the instant case, Judge Johnston’s ruling that “[i]nsufficient facts were

alleged, which do not establish or set forth a basis for the motion to disqualify Judge Aycock,” is

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not erroneous. However, the record does not appear to reflect that Judge Johnston considered the

other case CTEC was referring to when it filed its Affidavit. It is important that the affiant state

with particularity and clarity all the facts on which it is basing its request for recusal. This was

not done herein.

The lack of clarity in CTEC’s Affidavit should not preclude a review of all of the relevant

facts, however. “[D]ue process and judicial economy require the judge to consider whatever

evidence can be offered for or against recusal.” See, Cleparty v. CCT, supra, at p20. The fact

that Judge Aycock has made factual rulings regarding Ms. Mosqueda’s employment with CTEC,

and the conduct of Ms. Mosqueda which gave rise to the first fact-finding hearing being a part of

the facts alleged in the instant case, warrant a more particularized review by Judge Johnston34.

For the reasons stated above, we find cause to GRANT the interlocutory appeal, to

REVERSE the decision to deny the Affidavit of Prejudice, and to REMAND for a more detailed

inquiry regarding the allegations supporting the Affidavit, either by a review of sworn affidavits

or a fact-finding hearing.

It is SO ORDERED.

Our ruling below is dispositive, so we will not issue an Opinion on whether Judge Johnston’s rulings finding (1)

the motion was untimely; and (2) “trial action” had already taken place. We will not issue “guidelines” for the Trial

Court to follow regarding Affidavits of Prejudice. We have previously held “...the issuance of guidelines for deciding

on Motions for Disqualification is one for the trial court or should be made by the legislative body of the Tribe and

not this Court.” Ortiz & Louie v. CCT, 7 CCAR 07, 10, 4 CTCR 04 (2003).

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8 CCAR ___

Eldon L. WILSON, Appellant,

vs.

Rory GILLILAND, Appellee.

Case No. AP04-008, 4 CTCR 29

8 CCAR 64

[Daniel T. Gargan, Spokesman, appeared for Appellant.

James R. Bellis, Office of Reservation Attorney, appeared for Appellee.

Trial Court case no. CV-OC-2002-22404]

Argued December 17. 2004. Decided July 21, 2006.

Before Theresa M. Pouley, Presiding Justice, Justice David C. Bonga and Justice Elizabeth Fry

Pouley, A.J.

SUMMARY

Appellant Eldon Wilson appeals the April 5, 2004 “Order From Trial” affirming his

dismissal from employment and finding that there was no violation of due process in the

procedure used in the dismissal. Appellant asserts the Trial Court erred in finding he was

afforded the due process because the Tribes improperly employed dismissal procedures under the

Police Department Policy and Procedures and not the Colville Tribal Employment Policies and

Procedures. Appellee argues Appellant was provided with due process and that in any event the

Tribes are immune from suit.

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

applying the facts and law before it and therefore AFFIRMS the decision of the Trial Court.

FACTS

The parties and Trial Court agree that Appellant has been a valuable longtime employee

of the Colville Confederated Tribes. Trial Court Order, page 7. The issue in this case arises

from a change in Appellant’s employment status in 2002 and his subsequent dismissal from that

employment. Apellellant was appointed as the Law and Justice Administrator of the Tribes in

the late 1990’s. In 1998, the Tribes’ Executive Director, Lou Stone, fired several program

managers including Appellant. The Colville Business Council (“CBC”) transferred Apellant

into a newly created position. The position was subsequently abolished. In October of 1999, he

was assigned to the Detention Facility project, which was a grant funded position, from 1999 to

2003. The Colville Business Council then created and assigned the job of Detention Project

Administrator to Appellant.

In February of 2002, the Law and Justice Committee recommended to the CBC that

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Appellant and his staff should be under the supervision of the Chief of Police rather than directly

under the Committee. Appellant attended the meeting and was asked if he was “all right” with

the change and Appellant did not object.

Subsequently, the CBC passed Resolution 2002-167 in March of 2002. The Resolution states,

in pertinent part,

The Correctional facility, its present employees35 will be placed

under and operate under the Colville Tribal Police Department.

All employees will also adhere to sections of its policies and

procedures manual that apply. The Detention facility and its

employees will fall under the police department’s chain of

command and report to their appropriate supervisors in the

Corrections chain of command. The Facility Administrator or

Corrections Commander will report directly to the Chief of Police

or designee.

Trial Record, Exhibit B.

Appellant then resumed work reporting to Assistant Chief of Police Cory Orr. Appellant

was not given a Colville Tribal Police Department Manual and was not oriented to the

Department nor did Appellant request a Manual. On July 29, 2002, Appellant was placed on

Administrative leave with pay and by letter dated August 8, 2002, Appellant’s employment was

terminated effective August 12, 2002. See Exhibit F, Trial Court record. Appellant timely

appealed the termination as required under the Police Manual on August 15, 2002 to Appellee

and then timely appealed the Appellee’s decision to the Hearing Board, also required by the

Police Manual. See Exhibit G, Trial Court record. An appeal hearing was held on September

20, 2002, as provided by the Police Department Manual, by a panel of three persons. The

Appeal panel sustained four of the five grounds for termination and therefore upheld Appellant’s

termination. See Exhibit H, Trial Court record.

Appellant appealed to the Colville Tribal Court raising a variety of due process

violations. The Trial Court affirmed the decision of the Appellee. Appellant appeals to this

Court claiming 1) an improper modification of the conditions of Appellant’s employment; 2) a

violation of due process and ex post facto clauses; and 3) an error in denial of a default motion.

Appellee replies that Appellant did receive “due process”, that additional “pre-deprivation due

process” is not required, and that the Tribes sovereign immunity bars this action. Numerous

continuances before this Court, not detailed here, were properly requested and granted. Oral

The original signed resolution says “and future employees”. However, this distinction has no practical or legal effect to the decision in this

matter.

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8 CCAR ___

arguments were held on December 17, 2004.

DISCUSSION

I. Standard of Review.

We review the Trial Court’s findings under a clearly erroneous standard to determine if

the findings support the Trial Court’s conclusions of law. In this case, the Trial Court properly

limited its review to determining whether the administrative hearing violated the Colville Indian

Civil Rights Act. This court, thus, must determine whether the Trial Court was clearly

erroneous when it ruled that Appellant was provided with sufficient due process under the Civil

Rights Act. CTC v. Orr, 5 CCAR 1 (1998); CCT v. Naff, 2 CCAR 50 (1995).

II. Did the Trial Court err when it affirmed the dismissal of Appellant and found

that he was properly afforded due process under Colville Tribal Law?

The central argument of Appellant is that he was denied due process when his

employment was terminated under the Police Department’s policies and procedures. Appellant

points to no error in the process he received, no lack of fairness in the review of the termination,

but simply argues he is entitled to a “different” procedure. For the reasons stated in this opinion,

this Court does not agree and affirms the decision of the Trial Court.

Appellant argues that due process requires consideration of three factors: “first, the

private interest that will be affected by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used; and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the Government’s interest including

the function involved and the fiscal and administrative burdens that the additional or substitute

procedural requirement would entail”. Appellant’s opening brief, quoting, Matthews v.

Eldridge, 424 U.S. 319, 335 (1976). The Court agrees this legal standard is appropriate in

reviewing due process claims. As then Judge Dupris found in Swan v. CBC, CV92-12121

(Colv. Tr. Ct 1992), “Due process is ‘that which is due’: notice and the opportunity to be heard

The Mathews standard provides an appropriate definition of factors to consider in determining

what process is “due”.

In this case, the Trial Court judge was “not persuaded that there were due process

violations” in the limited review under the Civil Rights Act. The Trial Court then identified an

extensive process under which Mr. Gilliland’s decision to terminate Appellant provided all the

tenants of due process. Appellant was provided with notice of the official action, notice of the

procedure to be used to review the decision, an opportunity for a hearing, an opportunity for an

appeal of the original action before a three person panel which included an opportunity to call

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8 CCAR ___

witnesses, present evidence and cross-examine witnesses, and an opportunity to appeal the

completeness of the process to the Colville Tribal Court and Colville Tribal Court of Appeals.

These extensive procedures certainly meet the requirement of due process under Tribal law.

Furthermore, the probable value of any additional procedures is low and a substantial burden to

the Government would be very high—all without any likely benefit identified by Appellant.

Appellant next argues that he was not given notice of the actual process, namely under the

Police Policy Manual, and thus should be entitled to a “different” process. The undisputed facts

in the record are that the Police Manual applied by CBC Resolution 2002-167. (Tr. Ct. Order,

page 8). When adoption of the resolution was considered, Appellant was present and did not

object (Tr. Ct. Record, Testimony of Deb Louie at 10:04:51). He was provided actual notice of

the Resolution which informed of the applicability of the Police Manual (Tr. Ct. Ex. B, “cc:

Eldon Wilson”). The procedures of the Manual were applied as required (Tr. Ct. Order, pages

10-11). This is all the “process that was due”. We find as the Court in Swan did: “[j]ust

because one disagrees with the decision does not mean due process was not provided.”

III. The Tribes did not violate the Civil Rights Act requirement that they shall not

pass any “bill of attainder or ex post facto law”.

Appellant next argues that failure to orient the appellant on applicable policies violates

the prohibition against ex post facto laws and constitutes an illegal bill of attainder. Appellee

responds that such prohibition only applies to actions by the legislature finding certain people

“guilty” or retroactively changing their criminal punishment. The Court agrees with Appellee

that these protections do not apply in this employment case.

We agree with the United States

Supreme Court that:

These clauses of the Constitution are not of the broad, general nature of the Due

Process Clause, but refer to rather precise legal terms which had a meaning under

English law at the time the Constitution was adopted. A bill of attainder was a

legislative act that singled out one or more persons and imposed punishment on

them, without benefit of trial. Such actions were regarded as odious by the

framers of the Constitution because it was the traditional role of a court, judging

an individual case, to impose punishment.

U.S. v. Brown, 381 U.S. 437, 440 (1965). There is no precedent in any cited law nor in any

cultural principles to apply these principles beyond criminal proceedings and this Court declines

to do so in this case.

IV. Appellant’s remaining arguments of Modification of Employment Contract and

Request for a Default Judgment are new arguments on appeal and are stricken.

Appellant originally requested the court to reverse the Trial Court claiming the actions of

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the Tribe improperly unilaterally changed his employment contract. The Tribe moved to strike

the argument as an issue improperly raised for the first time on appeal. The Court agreed and

entered an order striking the opening brief on September 29, 2004. Appellant requested

reconsideration and submitted the argument to Court for the appeal. The Court denies the

reconsideration.

Appellant similarly argues for the first time in the 2nd Opening Brief that he is entitled to

a default judgment. Appellant failed to identify it as an issue on appeal, did not identify the

record to review and did not identify it as an issue on the initial hearing. Thus, under COACR

5(c) the Court will not entertain such issues.

Regardless of whether the argument is stricken, these arguments highlight the reason

behind the rule disallowing new arguments on appeal. Both arguments would require the

finding of specific facts and evidence which were not developed at the Trial Court level. The

facts found by the Trial Court actually support that there was no unilateral change of

employment. The Trial Court found that Appellant had notice both at the meeting adopting the

resolution and the resolution itself, had a hearing and had an appeal on the termination and this

was all with actual notice that the Police Manual was to apply.36

V. The Court issues no ruling on the issue of sovereign immunity because it is

unnecessary in light of the Court other rulings.

Appellee agues that sovereign immunity limits both the type of review and the remedies

available if the Appellant prevails. The Court issues no ruling on this issue because it is

unnecessary in light of its opinion affirming the Trial Court’s decision.

It is therefore ORDERED that:

The decision of the trial court is AFFIRMED. This matter is remanded to the Trial Court

for action consistent with this order.

Appellant argues that the Police Department had an affirmative obligation to provide a Manual and failed to meet their requirement.

However, at oral argument, Appellant conceded that section 1.03.00 does not require issuance of the Manual but places duties on the officer

when a Manual is issued. This Manual was available to Appellant.

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8 CCAR ___

Randy ZACHERLE, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP06-006, 4 CTCR 30, 33 ILR 6087

8 CCAR 70

[Tena Foster, Office of Public Defender, for Appellant.

Joni Bray, Office of Prosecuting Attorney, for Appellee.

Trial Court Case No. CR-2006-29043]

Initial Hearing held July 21, 2006. Decided July 31, 2006.

Before Justice Gary Bass, Presiding; Justice Dave Bonga; and Chief Justice Anita Dupris.

Dupris, CJ

SUMMARY

Final Judgment at the trial level was entered May 17, 2006. The Appeal herein was filed

on May 31, 2006. The Appeal was filed within the time allowed by our Court Rules. The

statutory definition of “Time” found at CTC §1-1-366 does not exclude weekends and holidays

in counting ten (10) days or more. The Appellee, through its Spokesman, Joni Bray, Tribal

Prosecutor’s Office, filed a Motion to Dismiss the Appeal in our Court, arguing the statutory

definition of “Time” superceded our Court Rules. She did not ask for a hearing on her Motion

to Dismiss.

The Appellant filed a Motion to Stay Execution and for Bond at the trial level. Ms. Bray

objected, offering her arguments regarding the constitutionality of the Court of Appeal’s Court

Rules (COACR) to the Trial Court, and asked the Trial Judge to deny because the Appeal was

not “perfected” as being untimely filed. Chief Judge Aycock agreed with the Appellee and

found cause to deny the stay of execution, holding that for the purpose of staying executions of

judgment pursuant to CTC §1-1-285, the Court of Appeals’ rules “are not Rules of Court.

Appeals must be timely filed under CCT [sic] 1.1.283, not COACR 6(a).”

For reasons stated below, we find (1) the Court of Appeals’ Court Rules do comply with

the laws of the Tribes; (2) the Trial Court exceeded its jurisdiction in deciding whether or not the

appeal was perfected; and (3) the Appeal is timely filed.

We reverse the Trial Court’s holdings that our rules are invalid and remand to the Trial

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8 CCAR ___

Court for a new hearing on the Stay of Execution and Bond consistent with our rulings.

ISSUES

A. Are the Court of Appeals’ Court Rules invalid as violating of the laws of the

Tribes?

B. Did the T

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