15 CCAR 49
Zachery LOVE, Appellant,
v.
Steven AYCOCK, in his official capacity as Chief Judge; Jack FERGUSON, in his official capacity as Councilman; Rodney CAWSTON, in his official capacity as Chairman; Marvin KHEEL, in his official capacity as Councilman; Richard SWAN, in his official capacity as Councilman; COLVILLE CONFEDERATED TRIBES; Steve BROWN; in his official capacity as Chief of Police; Marty RAAP, in his official capacity as attorney for the Office of Reservation attorney; and TRIBAL TRIBUNE.
No. AP21-017, 8 CTCR 14
Colville Confederated Tribes Court of Appeals
April 5, 2022
Trial Court Case No. CV-OC-2021-44112
Dupris, C.J.
This matter is before the Court of Appeals (COA) on Appellant's Motion to Reinstate Appeal filed on March 1, 2022. An Opposition to Motion to Reinstate Appeal was filed by Appellees on March 17, 2022. Upon review of the facts and the record, the COA finds Appellant has failed to show adequate cause to reinstate the appeal. The Motion is therefore denied and the matter closed[1 ].
The COA has jurisdiction to hear this matter. COACR 5.
HISTORY
On November 30, 2021, Appellant filed a Notice of Appeal of a Tribal Court order entered on November 3, 2021 which found the Appellant had been disbarred on June 22, 2021 and dismissed the action against the Chief Judge. On December 10, 2021, the COA Clerk sent a letter to Appellant advising him that his appeal would not be perfected until he complied with the Court Rules, i.e. filing an original and three working copies (COACR 8 (a)). No response was received from Appellant. On January 18, 2022, the COA entered an Order Dismissing Appeal as Imperfected.
On March 1, 2022, Appellant filed a Motion to Reinstate Appeal. Appellant alleged that the December 10, 2021, letter sent to him failed to cite to any statutory authority as to what was needed to be "corrected." He also alleges that on January 4, 2022, he was out of the country for 14 days, and did not receive any notices from the COA during that time. He did receive the letter of December 10, which stated that the appeal could not be perfected until he complied with the court rules concerning filing of the original and three copies[2 ]. He also alleges that since the COA did not put "with prejudice" on its Order, the Order is entered without prejudice, which would allow either a refiling or a motion to reinstate.
On March 3, 2022, an Order on Motion to Reinstate Appeal was entered by the COA. The COA reserved ruling on the Motion to Reinstate, gave Appellant two weeks to file proof of service[3 ] of his motion on Appellee, along with legal memorandum to support his motion. Upon receipt of the Motion, Appellees were given two weeks to file their response. Appellant was also instructed to only contact the Clerk of Court in writing. As of this date, no response was filed by Appellant on the proof of service of the Motion on Appellees.
On March 17, 2022, spokesperson for Appellees filed an Opposition to Motion to Reinstate Appeal. Appellees assert that COACR 8(a) is specific as to what was required and there is no dispute that it was not satisfied by Appellant.
DISCUSSION
The case in front of the COA is one of first impression. Appellant has filed a Motion for Reinstatement of Appeal. There is no rule in the Court of Appeals Rules nor any statutory law the Colville Tribal Law and Order Code that allows for Reinstatement of Appeal. COACR 17, Motion for Reconsideration; Finality of Order or Opinion, which is more relevant, states "Any party who is in disagreement with the final decision of the COA, may request that the COA review its decision." The Rule goes on to state that the Motion must be accompanied by an Affidavit, be specific as to what is being requested, and must be filed within ten days of receipt of the decision or order. In the instant case, Appellant did not file his Motion until approximately 41 days after its issuance. Even allowing for 3-5 days for the mail service, Appellant was well over the time allowed for the Motion for Reconsideration.
Court of Appeals Court Rule 8(a)'s first paragraph ends with the statement, "All documents filed shall be by an original and three working copies unless otherwise ordered." Colville Tribal Law and Order section 1-2-112(a) also has a concluding sentence in its first paragraph, "All documents filed shall be by an original and three working copies, unless otherwise ordered." Appellant only filed his original Notice of Appeal. He was advised that he needed to comply with the Court rule "regarding filing an original and three working copies." Appellant still has not provided the three working copies to the COA.
Appellee states that it is not the COA's obligation to provide Appellant legal advice. The letter that Appellant alleges was "broad, ambiguous, and vague," actually precisely told Appellant what was needed to be done and where to look to find it. He had six weeks from the December 10th letter and the January 18th Order to read and comply. Appellee also noted that Appellant's argument that the COA didn't include proof of service or tracking with the letter and that he was out of town on January 4-18, 2022 were red herrings. Appellant never states he didn't receive the letter, only alleges how the letter was mailed. He attached a copy of the letter to his motion which is proof he did receive it.
Further, there is no rule that the COA's orders are automatically without prejudice if not specifically stated as such. Appellee's argument that Appellant should not be allowed to extend his time to file a perfected appeal by not properly filing it in the first place has merit. Failure to properly file an appeal should not allow an Appellant to restart the clock once he gets an order dismissing it as not perfected. If it was not perfected in the first place, any subsequent appeal would be untimely.
To be admitted to the Colville Tribal Court Bar, a spokesperson must sign an Oath that states, in part, "I have read the Colville Tribal Law and Order Code and am familiar with its contents;" and "I will abide by the rules established by the Council and the Colville Tribal Court." It is clear that Appellant has not adequately read the Colville Tribal Law and Order Code regarding appellate procedures, nor has he adequately read the COA Court Rules. Both are relatively short and concise.
CONCLUSION
It is clear that Appellant has not followed the COACRs or the Orders of the Court. He has failed to submit proof of service on Appellees of his Motion to Reinstate Appeal. He has failed to submit the three working copies as required. He has not met the deadline specified for a Motion for Reconsideration. Finally, he has not shown adequate cause for the COA to grant his motion.
It is ORDERED that the Motion to Reinstate Appeal is DENIED WITH PREJUDICE and REMANDED to the Trial Court for action consistent with this Order.
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Notes:
[1 ]On March 30, 2022, Appellees filed an Opposition to Motion for Extension of Time. The COA is not in receipt of any Motion for Extension of Time filed by Appellant or anyone else. The Opposition Motion will not be considered in this Order.
[2 ]COACR 8.a, Filing. All papers required or permitted to be filed in the COA shall be filed with the COA Clerk. Filing may be accomplished by personal service, mail, electronic mail (e-mail), or fax as provided for in the following section, addressed to the Clerk, but filing shall not be timely unless the papers are received by the COA Clerk within the time fixed for filing. All documents filed shall be by an original and three working copies, unless otherwise ordered.
[3 ][Court Rule 8(b)] requires service on all parties of all papers filed by a party. The Party must then file proof of service with the clerk of court... An appeal will be dismissed if the appellant has not properly filed proof of service within the time limits of [Court Rules 8(b)]. Leaf v. CIHA, 7 CCAR 06 (02-06-2003).
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