HO-CHUNK NATION CODE (HCC)

HO-CHUNK NATION CODE (HCC)

TITLE2-GOVERNMENTCODE

SECTION 5 - CONTEMPT ORDINANCE

ENACTED BY LEGISLATURE; JULY 20, 2005

CITE AS: 2 HCC § 5

This Act supersedes HCC 98-004, Ho-Chunk Nation Contempt Ordinance enacted by

Legislative Resolution 9129198A.

TABLE OF CONTENTS

1. Authority ................................ :..................... .... 1

2. Purpose . .. .... . .. .. .... .. .......... ............... ...... .. .. .. .... .. 1

3. Declaration of Policy .......................................· 1

4. Definitions ........................................................ 1

5. Requirements of the Contempt Process ........... 2

6. Authorized Sanctions .. .......... .... .... .. .. .... .. .. .. .. .. . 47. Appeal of Contempt Order .. .. .. . .. ... .. .. .. .. .. .. .. .. .. . 5

L Authority.

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a. Article V, Section 2(a) of the Constitution grants the Legislature the power to

., ·.make laws, including codes, ordinances, resolutions, and statutes.

b. Article V, Section 2(h) of the Constitution grants the Legislature the power to

enact all laws prohibiting and regulating conduct, and imposing penalties upon all

persons within the jurisdiction of the Nation.

2. Purpose. The purpose of this Act is to establish the su}?stantive and procedural

requirements of the Nation's Courts contempt power within its subject matter and

personal jurisdiction.

3. Declaration of Policy. The Ho-Chunk Nation, mindful that the Judiciary represents a

fundamental aspect of Tribal sovereignty, recognizes that the Nation's Courts retain the

inherent authority to exercise the power of contempt. The contempt power established

· herein will preserve the dignity and decorum of the Judicial Branch, secure compliance

with orders and procedures, and protect the due process rights of those appearing before

the Courts.

4. Definitions. As used in this Ordinance, the following shall have the meaning

provided here.

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a. '1Contemnor" means the party in contempt of court, who may be a person, group of

persons, organization, corporation, or other legally cognizable entity.

b. "Contempt of Court" means any or all of the following:

( 1) Misconduct in the presence of the Court which interferes with a court

proceeding or with the administration of justic~ or which impairs the respect, dignity and

decorum of the Court.

(2) Disobedience, resistance, or obstruction of the authority, process, or order of

the Court.

(3) Refusal as a witness to appear, be sworn, or ans~er a question.

(4) Refusal to produce a document, record, or other object that impairs the ability

of the Court to establish findings of fact.

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c. "Punitive Sanction" means a sanction imposed to punish a past contempt of court

for the purpose of upholding the authority of the Court, regardless of whether or not the

underlying action has ended or is ongoing.

d. "Remedial Sanction" means a sanction imposed for the purpose of terminating an

ongoing contempt of Court that is purgeable upon compliance with the process, order, or

directive of the Court.

e. "Sanction" means any monetary fine or equitable order issued by the Court for the

purpose of punishing past contempt (punitive) or terminating an ongoing contempt

(remedial).

5. Requirements of the Contempt Process.

a. Standing.

( 1) A Show Cause Hearing shall be requested upon Motion by any of the

following:

(a) A party whose interests are harmed by the alleged contemnor.

(b) The Court.

(c). A Special Prosecutor of the Nation, or in its absence the Nation's

Department of Justice unless the Department of Justice is or represents the alleged

contemnor.

(2) A Summary Procedure may only be convened by the Court in which the

contempt occurred.

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b. Prima Facie Burden of Proof

( 1) The movant must demonstrate the presence of an otherwise valid process,

order, or directive of the Court.

(2) The movant must show that the alleged contemnor had actual or constructive

knowledge of the process, order, or directive.

(3) The movant must demonstrate that the authority, process, order, or directive

of the Court has been violated by the alleged contemnor through clear and convincing

evidence.

(4). The movant need not prove the alleged contemnor's state of mind.

(5) The Court may establish reasonable findings of fact and conclusions of law

from available information only if it is constitutionally capable of doing so.

c. Opportunity to Be Heard.

(1) If the alleged contempt occurs in the presence of the Court, the presiding

Judge or Justice may suspend the immediate proceedings and enter into a Summary

Procedure to determine punitive sanctions, but only for the purpose of preserving the

order, authority, and dignity of the Court. Notice of the subject matter of the contempt

and notice of the ava_ilability of immediate opportunity to be heard in a Summary

Procedure shall be imputed.

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(2) If the alleged contempt occurs out of the presence of the Court, the presiding

Judge or Justice may schedule a Show Cause Hearing to be set at a reasonable date and

time in the future in order for the Court to consider available defenses and appropriate

punitive or remedial sanctions. Proper notice in accordance with the Nation's Rules of

Civil Procedure shall be provided, although expedited measures may be taken.

(3) The Court may consider motions for punitive and remedial sanctions for

alleged contempt of Court during the same proceeding.

(4) The alleged contemnor retains the right of legal representation at his or her

own expense at a ·s how Cause Hearing.

(5) No right to a jury trial exists under this Ordinance.

d. Burden ofContemnor. Either during the Summary Procedure or at the Show

Cause Hearing, the alleged contemnor bears the burden of establishing that he or she

should not be held in contempt because:

( 1) He or she can demonstrate a reasonable inability to comply;

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(2) He or she can show that the underlying order is ambiguous; or

(3) He or she can demonstrate reasonable and diligent efforts of compliance.

e. Disqualification of Judges/Justices. If the alleged contempt of Court involves the

criticism of the presiding Judge or Justice, the Judge or Justice shall be disqualified from

presiding over the contempt proceeding unless the alleged contemnor provides express

consent to the contrary. If the alleged contempt occurs in the presence of the Court, the

presiding Judge or Justice shall be di~qualified and a Show Cause Hearing ~hall be

scheduled.

6. Authorized Sanctions.

a. Kinds of.Sanctions.

( 1) Payment of a sum of money sufficient to compensate a party for a loss or

injury suffered as a result of the contempt of court.

(2) Payment of a sum of money to the Court not to exceed $ 100 for each day the

contempt of court contin~eS:

(3) An order designed to redress past disobedience with a prior order of the

Court.

(4) An order designed to ensure compliance with an ongoing order of the Court.

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( 5) Any other appropriate sanction or order if the Court expressly finds that

paragraphs (I) thru (4), above, would be ineffective to address, terminate, or otherwise

ensure compliance in a past or continuing contempt of court.

b. Appropriate Sanctions.

(1) A Court may impose punitive sanctions for past conduct which was a

contempt of court even though:

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(a) Similar conduct is a continuing contempt of Court.

(b) Other remedial and/or punitive sanctions are pending and/or have been

issued against the contemnor.

(c) The underlying cause of action has been decided, settled, or otherwise

terminated.

(2) A Court may impose remedial sanctions for ongoing conduct which is a

contempt of court even though:

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(a) Similar conduct is a past contempt of court.

(b) Other remedial and/or punitive sanctions are pending and/or have been

issued against the contemnor.

c. Uniformity Clause. Any other provision of Nation's law providing for the exercise

of contempt shall comply with the substantive and procedural requirements of this

Ordinance.

7. Appeal of Contempt Order.

a. Nature of Sanctions. In any appeal of an order for contempt, the Court which

issued the order shall be the named Appellee. Due to the necessarily ongoing nature of a

remedial sanction, any findings of the Court in such proceedings are not final. As

punitive sanctions ar~ issued for past contempt, they shall be considered final orders.

b. Applicable Law. All appeals of a finding of contempt shall follow the Nation's

Rules of Appellate Procedure.

c. Limited Issues on Appeal. In the event,-the alleged contemnor fails to respond or

challenge the merits of underlying process, order, or directive to the Court which issued

the contempt, a challenge to the validity of the process, order, or directive is barred on

appeal. The only appealable question in such case·s shall be the validity of the contempt

order itself.

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d. Representation.

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( 1) The contemnor shall retain all rights to legal representation upon appeal at his

or her own expense.

(2) The Court which issued the Order of Contempt shall be represented on appeal

by a Nation Special Prosecutor, legal counsel appointed by the Legislature, or the

Department of Justice unless the Department of Justice is or represents the contemnor.

Legislative History:

9/29/98

11/24/04

5/17/05

7/8/05

7/20/05

Legislature enacts Contempt Ordinance (HCC 98-004) by Legislative Resolution 9/29/98A.

Legislature places Contempt Ordinance out for Executive Review and Coordination as a

Proposed Bill.

Legislature places Draft Contempt Ordinance out for 45-Day Public Review.

45-Day Public Review period ends without comments.

Enacted by Legislative Resolution 7/20/051.

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